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UNITED STATES OF AMERICA

FEDERAL TRADE COMMISSION

OFFICE OF ADMINISTRATIVE LAW JUDGES

________________________________________________

DOCKET NO. 9408

________________________________________________

In the Matter of

 INTUIT INC.,

a corporation,

Respondent.

________________________________________________

INITIAL DECISION

________________________________________________

D. Michael Chappell

Chief Administrative Law Judge

Date: September 6, 2023
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TABLE OF CONTENTS

I. INTRODUCTION............................................................................................................. 1

A. Summary of the Case ...............................................................................................1

B. Procedural Background............................................................................................2

C. Evidence...................................................................................................................3

II. FACTS................................................................................................................................ 5

A. Background..............................................................................................................5

1. Respondent...................................................................................................5

2. TurboTax Products and Services..................................................................5

3. Eligibility for TurboTax Free Edition ..........................................................7

B. TurboTax Advertisements and Website..................................................................11

1. Overview....................................................................................................11

2. Television Advertising ...............................................................................13

a. 2015 Super Bowl Advertisement .................................................. 14

b. 2016 Super Bowl Advertisement .................................................. 16

c. Television Advertisements for TY 2017 ....................................... 17

i. Fish....................................................................................... 17

ii. Guzman................................................................................ 18

iii. Cruise ................................................................................... 19

iv. Baby ..................................................................................... 20

v. Anthem Launch.................................................................... 21

d. Television Advertisements for TY 2018 and TY 2019 ................. 23

i. Lawyer ................................................................................. 23

ii. Movie Credits....................................................................... 25

iii. Game Show.......................................................................... 29

iv. Court Reporter ..................................................................... 33

v. Crossword ............................................................................ 35

vi. Football/Big Kick................................................................. 37

vii. Spelling Bee......................................................................... 39

e. Television Advertisements for TY 2020 and TY 2021 ................. 44

i. Auctioneer............................................................................ 44

ii. Dance Workout .................................................................... 45

iii. Dog Show............................................................................. 47

iv. Steven/Spit Take .................................................................. 48

3. Radio Advertising ......................................................................................50

a. Radio Advertisements for TY 2020 .............................................. 51

b. Radio Advertisements for TY 2021 .............................................. 51

4. Online Advertising.....................................................................................52

a. Non-Video Display Advertisements for TY 2020 

and TY 2021.................................................................................. 53
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b. Video Display Advertisements for TY 2020 

and TY 2021.................................................................................. 67

i. Advertisements without Voice-Over.................................... 67

ii. Advertisements with Voice-Over......................................... 73

c. Online Video Advertisements for TY 2020 and TY 2021............. 83

i. Echo ..................................................................................... 84

ii. Auctioneer............................................................................ 85

iii. Dance Workout .................................................................... 87

iv. Dog Show............................................................................. 88

v. Teen Love............................................................................. 88

5. Email Marketing ........................................................................................89

a. Email Details................................................................................. 89

b. Summaries..................................................................................... 98

6. Paid Search Advertising.............................................................................99

a. Paid Search Advertisements for TY 2019................................... 100

b. Paid Search Advertisements for TY 2020................................... 101

c. Paid Search Advertisements for TY 2021................................... 102

d. Summaries................................................................................... 105

7. TurboTax Website ....................................................................................105

a. Advertising on TurboTax Website .............................................. 106

b. Disclosures...................................................................................110

i. Hyperlinks on TurboTax Website Home Page ....................110

ii. TurboTax Free Edition Landing Page.................................113

c. Products & Pricing Page ..............................................................116

d. Upgrade Screens ......................................................................... 122

C. Extrinsic Evidence ...............................................................................................123

1. Novemsky Survey and Opinions .............................................................123

a. Novemsky Survey....................................................................... 123

i. Type of Survey................................................................... 123

ii. Methodology...................................................................... 124

iii. Survey Results ................................................................... 128

b. Other Relevant Novemsky Opinions.......................................... 130

2. Intuit’s Market Research..........................................................................131

a. Copy Testing ............................................................................... 131

b. Other Market Research ............................................................... 133

3. Consumer Complaints and Feedback Received by Intuit........................136

4. Consumer Sentinel Complaints................................................................140

5. Consumer Testimony ...............................................................................140

D. Intuit’s TY 2022 Advertising and Website...........................................................143

1. TY 2022 Advertisements .........................................................................143

2. TY 2022 Website......................................................................................148

E. State Settlement ...................................................................................................152
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III. ANALYSIS AND CONCLUSIONS OF LAW ............................................................ 156

A. Introduction..........................................................................................................156

1. Overview of Applicable Law...................................................................156

2. Claim Interpretation.................................................................................156

3. False or Likely to Mislead .......................................................................158

4. Materiality................................................................................................159

B. Overview of Arguments of the Parties.................................................................159

C. Overview of the Initial Decision..........................................................................160

D. Background..........................................................................................................160

1. The TurboTax Products............................................................................160

2. Intuit’s Advertising...................................................................................162

E. Deceptive Advertising..........................................................................................163

1. Claim Conveyed.......................................................................................163

a. Facial Analysis............................................................................ 163

i. Television and Radio Advertising...................................... 163

(a) Summary of Advertising..................................... 163

(b) Claim Conveyed.................................................. 169

ii. Online Advertising............................................................. 172

(a) Online Video Advertisements............................. 173

(b) Display Advertisements...................................... 176

iii. Email Advertisements........................................................ 180

iv. Paid Search Advertisements............................................... 184

b. Extrinsic Evidence ...................................................................... 186

i. Standards for Acceptable Extrinsic Evidence .................... 187

ii. Intuit’s Market Research.................................................... 187

iii. Novemsky Survey.............................................................. 189

iv. Additional Proof of Consumers’ Perception and 

Understanding of TurboTax Free Advertising ................... 192

v. Brand Distinction............................................................... 194

vi. Respondent’s Extrinsic Evidence on Advertisement 

Interpretation...................................................................... 194

2. Falsity.......................................................................................................197

3. Materiality................................................................................................205

4. Conclusion ...............................................................................................207

F. Affirmative Defenses...........................................................................................207

1. First Defense ............................................................................................207

2. Second Defense........................................................................................208

3. Third Defense...........................................................................................208

4. Fourth Defense.........................................................................................209

5. Fifth Defense............................................................................................209

6. Sixth Defense ...........................................................................................210

8. Eighth Defense.........................................................................................211

9. Tenth Defense ..........................................................................................212
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G. Remedy ................................................................................................................213

1. Overview..................................................................................................213

2. Necessity of Order ...................................................................................215

a. Applicable Legal Principles........................................................ 215

b. Voluntary Cessation of Conduct ................................................. 216

c. Cognizable Danger of Recurring Violation ................................ 217

3. Provisions of the Proposed Cease and Desist Order................................222

a. Disclosure Requirements............................................................ 222

i. Consumer Harm................................................................. 222

ii. Compelled Speech ............................................................. 226

iii. Clarity and Precision.......................................................... 226

b. Multi-product Scope ................................................................... 228

ORDER.......................................................................................................................... 230
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I. INTRODUCTION

A. Summary of the Case 

The Complaint in this case was issued by the Federal Trade Commission (“FTC” or 

“Commission”) on March 28, 2022. In summary, the Complaint alleges that Respondent, Intuit 

Inc. (“Respondent” or “Intuit”) deceptively marketed TurboTax, its online tax preparation 

service, in violation of Section 5 of the FTC Act, as amended, 15 U.S.C. § 45. Compl. ¶¶ 4-6, 

119-122. More specifically, the Complaint alleges that Respondent repeatedly claimed through 

various advertising channels that consumers could file their taxes for free using TurboTax, when 

in fact, TurboTax is free for only some consumers, based on the tax filing forms used. Compl. 

¶¶ 5-6. The Complaint further alleges that many consumers drawn to the TurboTax website to 

file their taxes for free will discover, in the course of preparing their tax returns, that they are 

unable to file for free and will be notified that they have to upgrade to a paid TurboTax product

in order to complete their tax filing. Compl. ¶¶ 6, 58. In this way, according to the Complaint, 

Intuit’s advertisements act as a deceptive “door-opener.” Compl. ¶¶ 57, 120, 122.

Respondent filed an answer to the Complaint on April 14, 2022, together with affirmative 

defenses (“Answer”). In summary, Respondent denied engaging in any deceptive advertising and 

averred that TurboTax Free Edition is in fact free for millions of taxpayers. Answer ¶¶ 5-6, 119-

122. Respondent further asserted that its advertising conveyed the limitations on its free tax 

filing offer. Answer ¶ 28. In addition, Respondent raised a number of affirmative defenses to the 

Complaint, including that the case is moot and the government is not entitled to a cease and 

desist order because Intuit has ceased the challenged advertising and has entered into an 

enforceable settlement agreement with the attorneys general for all 50 states and the District of 

Columbia to prevent future recurrence; that this action is time-barred; and that these 

administrative proceedings are unconstitutional or otherwise invalid because of the 

Commission’s prejudgment, the Commission’s combination of prosecutorial and adjudicative 

functions, the Commission’s discretion to choose administrative proceedings or adjudication in 

an Article III court, and the protections held by the Commissioners and the Administrative Law 

Judge (“ALJ”) against removal by the executive. Answer at 24-25.
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Upon full consideration of the entire record, and as explained more fully below, the 

evidence proves that Intuit engaged in deceptive advertising in violation of Section 5 of the FTC 

Act. An appropriate remedial Order is issued herewith.

B. Procedural Background

On August 22, 2022, Complaint Counsel filed a motion for summary decision with the 

Commission, pursuant to Commission Rule 3.22(a). 16 C.F.R. § 3.22(a). Respondent filed an 

opposition on August 30, 2022. The Commission issued an Opinion and Order Denying 

Summary Decision on January 31, 2023. In re Intuit Inc., No. 9408, 2023 FTC LEXIS 18 (Jan. 

31, 2023).

The evidentiary hearing in this matter began on March 27, 2023 and was conducted over 

two weeks. Thereafter, the parties submitted post-trial briefs, proposed findings of fact, and 

replies to each other’s briefs and proposed findings of fact. The record in this matter consists of 

the testimony of 41 fact witnesses and 6 expert witnesses (2 for Complaint Counsel and 4 for 

Respondent), presented live or by deposition. Over 2,350 exhibits were admitted into evidence.0F

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1 Pursuant to Commission Rule 3.45(b), orders were issued in this case granting in camera treatment to certain 

material, after finding, in accordance with the Rule, that its public disclosure would likely result in a clearly defined, 

serious injury to the entity requesting in camera treatment or that the material constituted “sensitive personal 

information,” as that term is defined in Commission Rule 3.45(b). In addition, when the parties sought to elicit 

testimony at trial that revealed information that had been granted in camera treatment, the hearing went into an in 

camera session. Rule 3.45(a) allows the ALJ “to grant in camera treatment for information at the time it is offered 

into evidence subject to a later determination by the [administrative] law judge or the Commission that public 

disclosure is required in the interests of facilitating public understanding of their subsequent decisions.” In re 

Bristol-Myers Co., No. C-8917-19, 1977 FTC LEXIS 25, at *6 (Nov. 11, 1977). As the Commission reaffirmed, 

since “in some instances the ALJ or Commission cannot know that a certain piece of information may be critical to 

the public understanding of agency action until the Initial Decision or the Opinion of the Commission is issued, the 

Commission and the ALJs retain the power to reassess prior in camera rulings at the time of publication of 

decisions.” In re General Foods Corp., No. 9085, 1980 FTC LEXIS 99, at *11 n.7 (Mar. 10, 1980). Thus, in 

instances where a document or trial testimony had been given in camera treatment, but the portion of the material 

cited to in this Initial Decision does not in fact merit in camera treatment, such material is disclosed in the public 

version of this Initial Decision, pursuant to Commission Rule 3.45(a) (the ALJ “may disclose such in camera

material to the extent necessary for the proper disposition of the proceeding”). In camera information in this Initial 

Decision is indicated in bold font and braces ({ }) in the in camera version and is redacted from the public version 

of the Initial Decision, in accordance with Rule 3.45(e). 16 C.F.R. § 3.45(e).
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C. Evidence 

This Initial Decision is based on a consideration of the whole record relevant to the issues 

and addresses the material issues of fact and law. The briefs and proposed findings of fact and 

conclusions of law, and the replies thereto, submitted by the parties, and all contentions and 

arguments therein were thoroughly reviewed and considered. Proposed findings of fact submitted 

by the parties that were not accepted in this Initial Decision were rejected, either because they 

were not supported by the evidence or because they were not dispositive or material to the 

determination of the merits of the case. Similarly, legal contentions and arguments of the parties 

that are not addressed in this Initial Decision were rejected, because they lacked support in fact 

or law, were not material, or were otherwise lacking in merit.

Ruling upon a decision of the Interstate Commerce Commission, and interpreting 

language in the Administrative Procedure Act (“APA”) that is almost identical to language in 

Commission Rule 3.51(c)(1), the United States Supreme Court held that “[b]y the express terms 

of [that Act], the Commission is not required to make subordinate findings on every collateral 

contention advanced, but only upon those issues of fact, law, or discretion which are ‘material.’” 

Minneapolis & St. Louis Ry. Co. v. United States, 361 U.S. 173, 193-94 (1959); accord Stauffer 

Labs., Inc. v. FTC, 343 F.2d 75, 82 (9th Cir. 1965); see also Borek Motor Sales, Inc. v. NLRB, 

425 F.2d 677, 681 (7th Cir. 1970) (holding that it is adequate for the Board to indicate that it had 

considered each of the company’s exceptions, even if only some of the exceptions were 

discussed, and stating that “[m]ore than that is not demanded by the [APA] and would place a 

severe burden upon the agency”). Issues of fact or law that do not affect the result in a case are 

not fairly deemed “material,” for purposes of Section 557(c)(3)(A) of the APA, 5 U.S.C. 

§ 557(c)(3)(A), or Rule 3.51(c)(1) of the Commission’s Rules of Practice, 16 C.F.R. § 3.51(c)(1), 

notwithstanding that there may be allegations or evidence presented on such issues. Rather, “a 

fact is only material if its resolution will affect the outcome” of the case. Lenning v. Commer.

Union Ins. Co., 260 F.3d 574, 581 (6th Cir. 2001) (summary judgment case); see also Timpa v. 

Dillard, 20 F.4th 1020, 1028 (5th Cir. 2021) (stating in a summary judgment case that “[a] fact is 

‘material’ if it ‘might affect the outcome of the suit under the governing law’”) (quoting 

Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986)). Furthermore, the Commission has 

held that ALJs are not required to discuss the testimony of each witness or all exhibits that are 
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presented during the administrative adjudication. In re Amrep Corp., No. 9018, 1983 FTC 

LEXIS 17, at *566-67 (Nov. 2, 1983). In addition, all expert witness opinion evidence submitted 

in this case has been fully reviewed and considered. Except as expressly relied on or adopted in 

this Initial Decision, such opinions have been rejected, as either unreliable, unsupported by the 

facts, immaterial, or unnecessary to the findings and conclusions herein. 

Under Commission Rule 3.51(c)(1), “[a]n initial decision shall be based on a 

consideration of the whole record relevant to the issues decided, and shall be supported by 

reliable and probative evidence.” 16 C.F.R. § 3.51(c)(1). The parties’ burdens of proof are 

governed by Commission Rule 3.43(a), Section 556(d) of the APA, and case law. Pursuant to 

Rule 3.43(a), “[c]ounsel representing the Commission . . . shall have the burden of proof, but the 

proponent of any factual proposition shall be required to sustain the burden of proof with respect 

thereto.” 16 C.F.R. § 3.43(a); accord 5 U.S.C. § 556(d) (“[E]xcept as otherwise provided by 

statute, the proponent of a rule or order has the burden of proof.”). “It is well established that the 

preponderance of the evidence standard governs Federal Trade Commission [ ] enforcement 

actions.” In re POM Wonderful LLC, No. 9344, 2012 WL 2340406, at *171 (F.T.C. May 17, 

2012) (citing cases). Under the APA, an ALJ may not issue an order “except on consideration of 

the whole record or those parts thereof cited by a party and supported by and in accordance with 

the reliable, probative, and substantial evidence.” 5 U.S.C. § 556(d). All findings of fact in this 

Initial Decision are supported by reliable, probative, and substantial evidence. Citations to 

specific numbered findings of fact in this Initial Decision are designated by “F.”1F

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2 References to the record are abbreviated as follows:

GX – Complaint Counsel’s Exhibit

RX – Respondent’s Exhibit

JX – Joint Exhibit

Tr. – Transcript of testimony before the ALJ

Dep. – Transcript of Deposition

IHT – Transcript of Investigational Hearing

CCB – Complaint Counsel’s Post-Trial Brief

CCRB – Complaint Counsel’s Post-Trial Reply Brief

CCFF – Complaint Counsel’s Proposed Findings of Fact

CCRRFF – Complaint Counsel’s Reply to Respondent’s Proposed Findings of Fact

RB – Respondent’s Post-Trial Brief

RRB – Respondent’s Post-Trial Reply Brief

RFF – Respondent’s Proposed Findings of Fact

RRCCFF – Respondents’ Reply to Complaint Counsel’s Proposed Findings of Fact
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II. FACTS

A. Background 

1. Respondent

1. Respondent Intuit Inc. (“Respondent” or “Intuit”) is a Delaware corporation with its 

principal place of business in Mountain View, California. (Commission Order on Facts 

Without Substantial Controversy ¶ 1; 2F

3 JX1 (Joint Stipulations of Law and Fact) ¶ 6).

2. Intuit is a publicly traded corporation with annual revenues of $6.8 billion in 2019, $7.7 

billion in 2020, $9.6 billion in 2021, and $12.7 billion in 2022. (GX342 (Complaint 

Counsel) ¶ 9.b; GX288 (Intuit) at 5, 36, 39; RX922 (Intuit) at INTUIT-FTC-PART3-

000611696 (Sep. 2, 2022 SEC Form 10-K), publicly available at 

https://www.sec.gov/ix?doc=/Archives/edgar/data/896878/000089687822000028/intu20220731.htm#i355069ae3df44bdb90bff538d4bca755_247 (Item 1 page 4)).

3. Intuit offers a number of widely used financial software programs, including TurboTax, 

which assists consumers with preparing and filing their taxes; QuickBooks, which assists 

small and medium-sized businesses with accounting; and Credit Karma, which provides 

consumers personalized recommendations for consumer financial products and services 

and access to their credit scores and reports. (GX288 (Intuit) at CC-00006010).

4. Intuit advertises, markets, promotes, distributes, and sells TurboTax, a commonly used 

online tax preparation service that enables users to prepare and file their income tax 

returns. (Commission Order on Facts Without Substantial Controversy ¶ 2; JX1 (Joint 

Stipulations of Law and Fact) ¶ 6). 

5. Intuit’s TurboTax is the most widely used online tax preparation service. In May 2021, 

TurboTax’s share of sales in the United States of America (“United States” or “U.S.”) 

was 73%; in April 2019, it was 63%. (GX342 (Complaint Counsel) ¶ 10; GX289 

(Complaint Counsel) at CC-00006221).

2. TurboTax Products and Services

6. TurboTax is the brand name of a suite of online tax preparation products and services 

offered by Intuit that enable consumers to prepare and file their individual federal income 

tax returns with the United States Internal Revenue Service (“IRS”). (JX1 (Joint 

Stipulations of Law and Fact) ¶ 8).

3 On January 31, 2023, the Commission issued an Order Denying Complaint Counsel’s Motion for Summary 

Decision. In connection with that order, the Commission issued an Order Directing Further Proceedings and 

Specifying Facts Without Substantial Controversy (“Commission Order on Facts Without Substantial 

Controversy”), which directed that certain facts be deemed established for purposes of this proceeding. 
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7. Intuit’s tax preparation products and services, including TurboTax, “have a significant 

and distinct seasonal pattern [referred to as the “tax season”] as sales and revenue from 

[them] are typically concentrated in the period from November through April.” (GX288 

(Intuit) at CC-00006018; see also Rubin, Tr. 1597 (the first peak of tax season is when 

people start to get their W-2s, in late January)).

8. Intuit uses the term “tax year” to refer to the calendar year preceding the period during 

which taxpayers prepare and file their annual individual tax returns. For example, tax 

year (“TY”) 2021 refers to tax returns filed in calendar year 2022 for income earned in 

calendar year 2021. (JX1 (Joint Stipulations of Law and Fact) ¶ 7).

9. Intuit offers several products under the TurboTax brand name that help consumers 

prepare and file their federal and state tax returns. (Ryan (Intuit) Tr. 690; Johnson (Intuit) 

Tr. 571-573; RX439-A (Intuit); RX449 (Intuit); GX144 (Soukas (Intuit) Dep.) at 15).

10. Intuit refers to its TurboTax products as “stock keeping units” or “SKUs.” (Johnson 

(Intuit) Tr. 572; Rubin (Intuit) Tr. 1575; Deal Tr. 1410). TurboTax SKUs are 

differentiated by (1) the level of assistance to be provided; and (2) the level of complexity 

of the consumer’s taxes, which is tied to the type of IRS forms and schedules the 

consumer is required to file. (Ryan (Intuit) Tr. 690; Johnson (Intuit) Tr. 568, 570-571; 

RX439-A (Intuit); RX449 (Intuit)). 

11. TurboTax SKUs fall into three categories of assistance level to be provided: Do-ItYourself (“DIY”), Live Assisted, and Live Full Service. (Johnson (Intuit) Tr. 572; Ryan 

(Intuit) Tr. 690-691; RX439-A (Intuit); RX449 (Intuit); RX1223 (Intuit); RX1224- A 

(Intuit)).

12. TurboTax DIY SKUs allow taxpayers to prepare and file their tax returns on their own. 

(Johnson (Intuit) Tr. 563; GX150 (Goode (Intuit) IHT) at 44-45; GX157 (Smith (Intuit) 

IHT) at 31). 

13. TurboTax Live Assisted SKUs allow taxpayers to prepare and file their tax returns 

themselves after receiving tax assistance, including a final review before filing. (Ryan 

(Intuit) Tr. 690). 

14. TurboTax Live Full Service SKUs provide taxpayers with a tax specialist who prepares 

and files a customer’s tax return entirely on the customer’s behalf. (Ryan (Intuit) Tr. 

691).

15. Each of the three product categories (F. 12-14) includes four separate SKUs 

differentiated by the complexity of the consumer’s tax situation. (Johnson (Intuit) Tr. 

572-573; Ryan (Intuit) Tr. 690). 

16. The four TurboTax DIY SKUs are: TurboTax Free Edition, TurboTax Deluxe, TurboTax 

Premier, and TurboTax Self-Employed. (Ryan (Intuit) Tr. 690; RX439-A). 
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17. The four TurboTax Live Assisted SKUs are: TurboTax Live Basic,3F

4 TurboTax Live 

Deluxe, TurboTax Live Premier, and TurboTax Live Self-Employed. (GX144 (Soukas 

(Intuit) Dep.) at 15; RX1224-A (Intuit)). 

18. The four TurboTax Live Full Service SKUs are: TurboTax Live Basic Full Service,4F

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TurboTax Live Deluxe Full Service, TurboTax Live Premier Full Service, and TurboTax 

Live Self-Employed Full Service. (GX144 (Soukas (Intuit) Dep.) at 15; RX1224-A 

(Intuit)).

3. Eligibility for TurboTax Free Edition

19. Intuit offers a free version of TurboTax for individuals filing income taxes. The free 

version was called “Federal Free Edition” for TY 2016 and “TurboTax Free Edition” 

thereafter. (Commission Order on Facts Without Substantial Controversy ¶ 3).

20. TurboTax Free Edition is available to taxpayers with “simple tax returns,” as defined by 

Intuit. (Commission Order on Facts Without Substantial Controversy ¶ 4). 

21. Intuit offers a free version of TurboTax in order to grow the number of TurboTax 

customers and build relationships with them so that they return to TurboTax and choose 

its paid products in future years as their tax complexity evolves. (GX156 (Ryan (Intuit) 

IHT) at 87-89 (“My understanding is that by offering a great experience with your simple 

taxes for free, our hope is that a customer grows with us as their life gets more 

complicated.”); GX156 (Ryan (Intuit) IHT) at 118-119 (“You know, generally speaking, 

we believe we have the best tax software out there, and getting simple tax filers to use our 

free software and grow with us as their life gets more complicated is my understanding of 

why we are willing to invest marketing dollars for customers that generate no revenue in 

a given year.”); GX152 (Johnson (Intuit) IHT) at 124-126 (“[A]s we have relationships 

and [consumers] trust us, over time, whether it’s one year, two year, five years, they may 

need us for a service that’s more advanced than their current simple tax filings. And as a 

consequence, they will – there is potential future revenue streams.”); GX342 (Complaint 

Counsel) ¶ 188 (screenshot from TurboTax Free Edition webpage stating in part: “We 

hope that, over time, as our customers with simple returns need more capabilities as their 

financial situations change (for example owning a home, having a child, managing 

investments), they have loved our products and services so much that they will choose 

our paid TurboTax offerings to prepare and file their returns.”)).

22. Before 2013, consumers with simple tax returns as defined by Intuit could use TurboTax 

Free Edition to file their federal income taxes for free. Filing state income taxes required 

a fee. (Ryan (Intuit) Tr. 707; RX591 (Intuit) at INTUIT-FTC-PART3-000601681).

4 In TY 2020, Intuit offered TurboTax Live Basic for free for individuals with simple tax returns for a limited time 

period. (Ryan (Intuit) Tr. 742; Rubin (Intuit) Tr. 1541-1542).

5 In TY 2021, Intuit offered both TurboTax Live Basic and Live Basic Full Service for individuals with simple tax 

returns to file with a tax professional for free for a limited time period. (Ryan (Intuit) Tr. 749-750; GX650 (Intuit) at 

CC-00013976).
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23. From TY 2014 to TY 2017, Intuit offered a promotion called “AbsoluteZero,” which 

provided customers using a TurboTax free product to file their federal returns the ability 

to prepare and file their state tax returns for free during the first five weeks of the tax

filing season (later expanded to the first fifteen weeks of the tax filing season). Because 

“the name of [Intuit’s free] offer [was] AbsoluteZero” from TY 2014 to TY 2017, Intuit used 

the AbsoluteZero name in its advertising during that period. (Johnson (Intuit) Tr. 606).

24. In TY 2018, Intuit began making free state tax return filing available with TurboTax Free 

Edition for the entire year. (Ryan (Intuit) Tr. 711-712, 720-721; Johnson (Intuit) Tr. 602-

604; RX581 (Intuit) at INTUIT-FTC-PART3-000601718-719; RX577 (Intuit) at 

INTUIT-FTC-PART3-000601501; RX300-A (Intuit) at 3).

25. Intuit’s definition of “simple tax returns” has changed over time to reflect changes made 

by the IRS relating to tax forms and schedules. (Johnson (Intuit) Tr. 581, 584; Ryan 

(Intuit) Tr. 720; see F. 26-27, 29-34; see also Answer ¶¶ 15-17).

26. Prior to TY 2018, Intuit defined simple tax returns as those that could be filed with an 

IRS Form 1040EZ or Form 1040A. (JX1 (Joint Stipulations of Law and Fact) ¶ 10; Ryan 

(Intuit) Tr. 707, 718-719; RX1280 (Intuit); Compl. ¶ 15; Answer ¶ 15). 

27. Prior to TY 2018, taxpayers qualified to use IRS Form 1040EZ or 1040A if they made 

less than $100,000, were only claiming the standard deduction, and met certain other 

qualifications, such as claiming no dependents (Form 1040EZ) or only reporting limited 

types of income (Form 1040A). (JX1 (Joint Stipulations of Law and Fact) ¶ 11).

28. Prior to TY 2018, Congress passed tax reform legislation. In response, the IRS eliminated 

Form 1040EZ and Form 1040A and substituted a new Form 1040. Form 1040 then 

became the most basic individual tax form. (JX1 (Joint Stipulations of Law and Fact) 

¶ 12).

29. For TY 2018 and TY 2019, Intuit modified its definition of simple tax return to mean a 

return that could be filed on a Form 1040 without any attached forms or schedules. (JX1 

(Joint Stipulations of Law and Fact) ¶ 13; Ryan (Intuit) Tr. 702-703).

30. For TY 2020, Intuit modified its definition of simple tax return to mean a return that 

could be filed on a Form 1040, with no attached schedules, except to claim 

unemployment income. (Compl. ¶ 17; Answer ¶ 17; GX184 (Complaint Counsel) (“A 

simple tax return is Form 1040 only OR Form 1040 + Unemployment Income.”)).

31. For TY 2021, Intuit modified its definition of simple tax return to mean a return that 

could be filed on a Form 1040, with certain attached schedules to cover distinct tax 

situations, including student loan interest. (See Answer ¶ 18; GX342 (Complaint 

Counsel) ¶ 197; GX484 (Complaint Counsel) (“A simple tax return is Form 1040 only. 

Situations covered by TurboTax Free Edition . . . [1.] W-2 income[, 2.] Limited interest 

and dividend income reported on a 1099-INT or 1099 DIV[, 3.] Claiming the standard 
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deduction[, 4.] Earned Income Tax Credit (EIC)[, 5.] Child tax credits[, and 6.] Student 

Loan Interest deduction[.]”)).

32. Taxpayers who receive income reported through certain types of IRS Forms 1099 (for 

example, a 1099-MISC), such as taxpayers who receive independent contractor or small 

business income, are not eligible for TurboTax Free Edition. (GX342 (Complaint 

Counsel) ¶ 200; GX221 (Complaint Counsel); GX239 (Complaint Counsel); GX261 

(Complaint Counsel); GX279 (Complaint Counsel); GX294 (Intuit) at CC-00006302-

6303 (“Situations not covered in TurboTax Free Edition include: . . . Business or 1099-

MISC income”); RX1359 (Intuit) (showing forms covered and not covered by Free 

Edition in TY 2022)).

33. For TY 2018 through TY 2020, taxpayers who claimed the student loan interest 

deduction were not eligible for TurboTax Free Edition, regardless of their income. (See

GX223 (Complaint Counsel); GX241 (Complaint Counsel); GX263 (Complaint 

Counsel)).

34. For TY 2021, taxpayers who had the following tax situations were not eligible for 

TurboTax Free Edition: “[1.] Itemized deductions[, 2.] Unemployment income reported 

on a 1099-G[, 3.] Business or 1099-NEC income[, 4.] Stock sales[, 5.] Rental property 

income[, and 6.] Credits, deductions and income reported on schedules 1-3.” (GX342 

(Complaint Counsel) ¶ 197; GX484 (Complaint Counsel); RX3 (Intuit)).

35. Many taxpayers do not have “simple tax returns,” as defined by Intuit, and so do not 

qualify for TurboTax Free Edition. (Commission Order on Facts Without Substantial 

Controversy ¶ 5).

36. Approximately two-thirds of taxpayers do not meet Intuit’s simple tax return 

qualifications and therefore are not eligible to file for free using TurboTax Free Edition. 

(See GX342 (Complaint Counsel) ¶¶ 215-217 (calculating, based on IRS-reported data, 

that in TY 2018, 69.54% of returns filed were not “Returns that filed Form 1040 with no 

Schedules 1-6 or Schedule A attached”); GX336 (Complaint Counsel) (publicly available 

IRS data); GX342 (Complaint Counsel) ¶¶ 215, 218-219 (calculating, based on IRSreported data, that in TY 2019, 63.43% of returns filed were not “Returns that filed Form 

1040 with no Schedules 1-6 or Schedule A attached”); GX337 (Complaint Counsel) 

(publicly available IRS data); GX115 (Intuit) at CC-00001125 (“To avoid further 

disruption from current and new competitors we should continue to look at ways to 

expand our free eligibility beyond the ~35% eligibility we have today, yet stopping short 

of a Free DIY prep solution for all situations.”); Johnson (Intuit) Tr. 657 (“Q. Roughly a 

third are eligible for the – for TurboTax Free Edition, correct? A. Yes. . . . . Q. And 

roughly two-thirds are not eligible, correct? A. Yes.”); GX654 (Intuit) (“If your return fits 

on a 1040 with no additional schedules, you can file completely for free with TT Free 

Edition. . . . Over 50 million taxpayers are eligible (1/3 of all tax filers[.]”)).

37. Approximately 100 million taxpayers are not eligible to file for free using TurboTax Free 

Edition. (Rubin (Intuit) Tr. 1594-1595 (testifying that 60 million simple tax returns that 
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would qualify to use TurboTax Free Edition were filed in 2022 out of the 160 million tax 

returns filed with the IRS); Johnson (Intuit) Tr. 657 (testifying that there are 150 million 

filers in the U.S. and 50 million are eligible for TurboTax Free Edition); see JX1 (Joint 

Stipulations of Law and Fact) ¶ 14 (“[O]f the 157,682,637 returns filed with the IRS in 

2020, 57,671,912 returns included only Form 1040 with no Schedules 1-6 or Schedule A 

attached.”)). 

38. For consumers whose returns are not considered “simple tax returns,” as defined by 

Intuit, Intuit offers paid TurboTax products. For instance, consumers with mortgage and 

property deductions, charitable donations over $300, itemized deductions, unemployment 

income, and education expenses can file their taxes using TurboTax Deluxe. Consumers 

with investment income and rental property income and refinancing deductions can file 

using TurboTax Premium. And consumers with expenses from self-owned businesses can 

file their taxes using TurboTax Self-Employed, the most comprehensive TurboTax 

product. (Commission Order on Facts Without Substantial Controversy ¶ 6).

39. Customers who are not eligible for Turbo Tax Free Edition may begin preparing their 

taxes in that product. Upon entering disqualifying information, they are presented with a 

screen that informs them that they will need to upgrade to a paid product capable of 

supporting their tax needs in order to continue using TurboTax. (Commission Order on 

Facts Without Substantial Controversy ¶ 7).

40. Taxpayers that do not meet Intuit’s definition of simple tax returns must upgrade to paid 

versions of TurboTax to file their taxes online through TurboTax. (Rubin (Intuit) Tr. 

1505-1506, 1583-1584; Johnson (Intuit) Tr. 674-676; GX150 (Goode (Intuit) IHT) 240 

(“If the customer has a 1099-MISC . . . and they want to complete with TurboTax, they 

would need to upgrade to Deluxe or Self-Employed.”)). 

41. TurboTax Deluxe, TurboTax Live Deluxe, and TurboTax Live Deluxe Full Service are 

paid versions of TurboTax that can be used by consumers with tax situations that make 

them ineligible for TurboTax Free Edition, such as mortgage deductions, rental property

income, charitable donations over $300, itemized deductions, unemployment income, or 

education expenses. (Rubin (Intuit) Tr. 1614; RX439-A (Intuit); RX449 (Intuit)).

42. TurboTax Premier, TurboTax Live Premier, and TurboTax Live Premier Full Service are

paid versions of TurboTax that can be used by consumers with IRS forms or schedules

beyond those covered by the TurboTax Deluxe SKUs, such as investment income, rental 

property income, or refinancing deductions. (Johnson (Intuit) Tr. 682-683 (a taxpayer 

would need to use the Premier product line for stock and investment income); RX439-A 

(Intuit); RX449 (Intuit)).

43. TurboTax Self-Employed, TurboTax Live Self-Employed, and TurboTax Live SelfEmployed Full Service are paid versions of TurboTax that can be used by taxpayers who 

file Form 1099-NEC, Form 1099-K, and Schedule C. (RX439-A (Intuit); RX950 (Intuit)

at INTUIT-FTC-PART3-000610164-166; RX1539 (Intuit) at 1).
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44. The cost to upgrade to a paid DIY version for TurboTax ranges from $35 to $119. (See, 

e.g., RX222 (Intuit) (showing discount prices ranging from $34.99 to $40 for Deluxe and 

$54.99 to $70 for Premier for TY 2016); GX261 (Complaint Counsel) (showing prices 

ranging from $49 for Deluxe and $99 for Self-Employed for TY 2020); GX342 

(Complaint Counsel) ¶ 202 (showing discounted and regular prices for consumers 

reporting self-employed income of $89 and $119 for TY 2021)).

45. The price of a tax preparation product is important to consumers. (Golder Tr. 1084-1085

(testifying that “price is important to consumers”), 1183 (“Consumers are very interested 

in price.”)). A survey conducted by Respondent’s expert witness, Professor John Hauser, 

(referred to as the “Purchase Driver Survey”) shows that 70.4% of survey respondents 

consider price an important factor in their choice of a tax preparation provider. (RX1017 

(Hauser Expert Report) ¶ 113; Hauser (Intuit) Tr. 967).5F

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B. TurboTax Advertisements and Website

1. Overview

46. Intuit advertises for its free and paid TurboTax SKUs, as well as the TurboTax brand 

generally. (JX1 (Joint Stipulations of Law and Fact) ¶ 16).

47. Intuit’s advertising for TurboTax Free Edition raises awareness for the TurboTax brand 

in general. (GX160 (Rubin (Intuit) Dep.) at 79-84; see also GX146 (Ryan (Intuit) Dep.) 

at 111 (testifying that “the TurboTax brand is part of the ad, and that drives awareness 

beyond simple filers . . . which we believe has an overall positive ROI [return on 

investment]”)). 

48. Intuit has promoted its free offering through multiple advertising channels, including 

television, the TurboTax website, social media, and paid search advertising. (Commission 

Order on Facts Without Substantial Controversy ¶ 8).

49. Since at least 2015, Intuit has extensively promoted TurboTax online filing products, 

including its free versions, such as TurboTax Free Edition, using numerous advertising 

channels, including television advertisements; online video and audio advertisements; 

non-video display, mobile, and paid social media advertisements; paid search 

advertisements; and direct email marketing throughout the United States. (JX1 (Joint 

Stipulations of Law and Fact) ¶ 17; Ryan (Intuit) Tr. 691-696; GX Summary 001 

(Complaint Counsel) (summarizing TV advertisement dissemination data produced by 

Intuit); GX Summary 002 (Complaint Counsel) (summarizing online advertisement

dissemination data produced by Intuit); GX431 (Intuit); GX432 (Intuit); GX433 (Intuit); 

GX434 (Intuit); GX435 (Intuit); GX436 (Intuit); GX437 (Intuit); GX631 (Intuit) at CC00013284-285; see also RX1018 (Golder Expert Report) ¶ 8; Hauser Tr. 971 (“Intuit did 

use a multiyear, multimodal campaign.”)).

6 Professor Hauser’s survey is a census survey of the various things that people do when choosing a tax-preparation 

provider. (RX1391 (Hauser Dep.) at 32; RX1017 (Hauser Expert Report) ¶ 103).
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50. Intuit’s advertisements for TurboTax, including its free versions, have been widely 

disseminated throughout the United States. (F. 49, 53-58, 221-222).

51. From TY 2014 to TY 2017,6F

7 for the AbsoluteZero promotion (F. 23), Intuit often 

included the word “guaranteed” to bolster consumer confidence that the claim that the 

offer was truly free. (See GX290 (Intuit) at CC-00006225 (explaining that Intuit added 

the language “Guaranteed” to “address skepticism of free, build credibility of TT Free, 

and drive trial”); GX295 (Intuit) at CC-00006316 (“Convince consumers TurboTax 

AbsoluteZero is truly free . . . Guarantee”), CC-00006333 (“Drive believability of TT 

Free . . . add ‘Guaranteed’ in lock-up”), CC-00006351 (“Findings: . . . ‘A[bsolute]/Z[ero] 

Guarantee’ is the strongest concept to battle free skepticism”)). 

52. From TY 2018 through TY 2021, Intuit ran an advertising campaign referred to within 

Intuit as “The Power of Free,” in which “free” is essentially the only word used or spoken 

in the advertisement, except for a voice-over at the end of the advertisement (referred to 

herein at times as the “free, free, free” campaign or “free, free, free” advertisements).

(Johnson (Intuit) Tr. 588-589; Rubin (Intuit) Tr. 1555 (“We called it ‘The Power of 

Free.’”); GX441 (Intuit) at CC-00007890-892; GX428 (Intuit) at CC-00007711

(describing the “campaign strategy” that “celebrates ‘The Power of Free’” where “every 

word spoken by earnest actors is replaced with the word ‘Free.’”)).

53. In the course of the “free, free, free” campaign, between November 1, 2018, and April 

18, 2022, Intuit aired “free, free, free” television advertisements at least 84,356 times 

across at least 721 television networks. This included networks in every state in the 

country. (GX342 (Complaint Counsel) ¶¶ 41, 45, 50, 55, 61, 70, 75, 85, 87, 89, 91, 93, 

107, 110, 113, 134, 140, 145). 

54. Between January and March of 2022, versions of “free, free, free” television 

advertisements (“Dance Workout,” (F. 182) “Auctioneer,” (F. 176) and “Dog Show”

(F. 188)) aired more than 11,000 times on national television. (GX Summary 001 

(Complaint Counsel) at “Pivot – Ads w-Program Count” B22, B26, B27 & B29; GX431 

(Intuit); GX432 (Intuit); GX433 (Intuit)). “Free, free, free” advertisements were aired on 

national television during the broadcast of the 2022 Olympics. (GX432 (Intuit)). 

55. Between February and May 2021, “free, free, free” television advertisements (“Dance 

Workout,” “Auctioneer,” and “Dog Show”) aired more than 16,000 times on national 

television. (GX Summary 001 (Complaint Counsel) at “Pivot – Ads w-Program Count”

B9, B10, B12, B13, B15, B16; GX436 (Intuit); GX437 (Intuit)).

56. Intuit advertises and has advertised TurboTax through social media platforms like 

Facebook, Instagram, Twitter (now known as X), Snapchat, and TikTok. (GX156 (Ryan 

7 For purposes of this Initial Decision, the reference to a tax year (TY) in which an advertisement appeared refers to 

the period considered by Intuit to be the tax season for a particular calendar year, generally the period from 

November to April. (GX288 (Intuit) at CC-00006018; see Shiller (Complaint Counsel) Tr. 177).
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(Intuit) IHT) at 28-29; see also Ryan (Intuit) Tr. 693; JX1 (Joint Stipulations of Law and 

Fact) ¶¶ 18, 20).

57. Intuit advertises and has advertised TurboTax, including its free versions, through paid 

search advertising, also called pay-per-click advertising, and search engine optimization. 

(RX582 (Intuit) at INTUIT-FTC-PART3-000601290; Ryan (Intuit) Tr. 696; GX156 

(Ryan (Intuit) IHT) at 30-31; JX1 (Joint Stipulations of Law and Fact) ¶ 18).

58. Intuit markets and has marketed directly to consumers to promote TurboTax, including 

its free versions, through emails. (Ryan (Intuit) Tr. 689-690, 695-696; GX156 (Ryan 

(Intuit) IHT) at 40).

59. Many of Intuit’s advertisements contain a written disclosure indicating that the offer is 

limited to consumers with “simple tax returns” or “simple U.S. returns only” or similar 

verbiage. (Commission Order on Facts Without Substantial Controversy ¶ 10). Some 

television or video advertisements also include audible references to “simple tax returns” 

or “simple returns.” (Commission Order on Facts Without Substantial Controversy ¶ 10).

60. In TY 2018 and TY 2019, of its TurboTax marketing budget, Intuit spent approximately 

30% on television advertising, 30% on online display advertising, and 30% on paid 

search advertising. (Answer ¶ 22; Ryan (Intuit) Tr. 698, 792).

61. Based on calculations of Respondent’s expert witness, Professor Peter Golder, Ph.D., 

10% of Intuit’s “free” advertising did not include the language regarding “simple returns 

only.” (RX1018 (Golder Expert Report) ¶ 98 & Figure 12).

62. Consumers who are interested in trying TurboTax are able to access TurboTax products 

through the TurboTax website. (Johnson (Intuit) Tr. 593).

2. Television Advertising

63. Some of the television advertisements described in this section II.B.2 do not mention a 

TurboTax sub-brand, such as TurboTax Free Edition. (E.g., GX299 (Intuit); GX321 

(Complaint Counsel); GX323 (Complaint Counsel); GX325 (Intuit); GX328 (Intuit); 

GX330-GX331 (Intuit); GX344 (Intuit); GX346-GX347 (Intuit), or do so in small, 

inconspicuous lettering. (GX59 (Complaint Counsel); GX321 (Complaint Counsel); 

GX326-GX327 (Complaint Counsel); GX348 (Intuit); GX350-GX351 (Intuit); GX352 

(Complaint Counsel); GX356 (Intuit)). 

64. In virtually all the television advertisements described in this section II.B.2, references to 

“simple returns,” and “see details” or “see if you qualify” at TurboTax.com, appeared in 

small print and were located at the bottom of the screen. (E.g., GX59 (Complaint 

Counsel); GX202 (Complaint Counsel); GX204 (Complaint Counsel); GX208 

(Complaint Counsel); GX299 (Intuit); GX307 (Complaint Counsel); GX309 (Complaint 

Counsel); GX321 (Complaint Counsel); GX323 (Complaint Counsel); GX324-GX325 

(Intuit); GX326-GX327 (Complaint Counsel); GX328-GX331 (Intuit); GX332 
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(Complaint Counsel); GX344-GX351 (Intuit); GX356 (Intuit); RX1112 (Intuit); RX1115 

(Intuit); RX1398-RX1400 (Intuit)).

65. Where the disclosures referenced in F. 64 appeared, the small print was typically faint in 

color and was virtually lost against the other larger, bolder, printed messages, such as the 

TurboTax logo and the adjacent word(s), “free.” (E.g., GX59 (Complaint Counsel); 

GX299 (Intuit); GX307 (Complaint Counsel); GX309 (Complaint Counsel); GX326-

GX327 (Complaint Counsel); GX328-GX331 (Intuit); GX332 (Complaint Counsel); 

GX348-GX351 (Intuit); GX356 (Intuit)).

66. Where the disclosures referenced in F. 64 appeared, they typically appeared toward the 

end of the television advertisement and lasted only a few seconds. (E.g., GX59 

(Complaint Counsel); GX202 (Complaint Counsel); GX204 (Complaint Counsel); 

GX208 (Complaint Counsel); GX321 (Complaint Counsel); GX323 (Complaint 

Counsel); GX324-GX325 (Intuit); GX326-GX327 (Complaint Counsel); GX328-GX331 

(Intuit); GX332 (Complaint Counsel); GX345-GX346 (Intuit); GX349-GX351 (Intuit); 

GX356 (Intuit); RX1115 (Intuit); RX1398-RX1399 (Intuit)). In addition, they typically 

appeared against a backdrop of other sounds or moving images. (E.g., GX59 (Complaint 

Counsel); GX204 (Complaint Counsel); GX208 (Complaint Counsel); GX299 (Intuit); 

GX323 (Complaint Counsel); GX324-GX325 (Intuit); GX326-GX327 (Complaint 

Counsel); GX332 (Complaint Counsel); GX344-GX351 (Intuit); GX356 (Intuit); 

RX1112 (Intuit); RX1115 (Intuit); RX1398-RX1399 (Intuit)), including, in some 

advertisements, a voice-over simultaneously claiming that filing with TurboTax was 

free). (GX59 (Complaint Counsel); GX204 (Complaint Counsel); GX208 (Complaint 

Counsel); GX299 (Intuit); GX309 (Complaint Counsel); GX326-GX327 (Complaint 

Counsel); GX328-GX331 (Intuit); GX332 (Complaint Counsel); GX348 (Intuit); GX350-

GX351 (Intuit); GX356 (Intuit); RX1112 (Intuit); RX1115 (Intuit); RX1398-RX1400 

(Intuit)).

a. 2015 Super Bowl Advertisement

67. GX321 is a video recording of a 60-second television advertisement placed by Intuit that 

ran during the 2015 Super Bowl (the “Boston Tea Party” advertisement). (GX321 

(Complaint Counsel); GX342 (Complaint Counsel) ¶¶ 20-22). The Boston Tea Party 

advertisement depicts a fictionalized version of the Boston Tea Party. The following 

describes the words and actions in the Boston Tea Party advertisement:

FIRST REVOLUTIONARY: No taxation without represent . . .

FIRST BRITISH SOLDIER: Yes, yes, we hear you on the tax thing.

SECOND BRITISH SOLDIER: But what if it were free to file your 

taxes? 

SECOND REVOLUTIONARY: Like, free free? 
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SECOND BRITISH SOLDIER: Yes, yes. You’d pay nothing. Not a 

thing. No thing. 

THIRD REVOLUTIONARY: Well alright then!

FOURTH REVOLUTIONARY: Alright then!

THIRD BRITISH SOLDIER: Cheers!

WOMAN: Alright then.

FOURTH BRITISH SOLDIER: Alright then.

GEORGE WASHINGTON: Alright then. Back it up! 

While the scene shows George Washington and the American revolutionaries 

retreating in a boat, a voice-over begins, transcribed below: 

VOICE-OVER: Okay, so maybe that’s not exactly how it went down, 

but you can file on TurboTax for absolutely nothing. Intuit TurboTax. 

It’s amazing what you’re capable of.

(GX321 (Complaint Counsel); GX342 (Complaint Counsel) ¶ 24). 

68. At approximately the 0:54 mark of the 60-second Boston Tea Party advertisement, during 

the voice-over, the following screen appears: 

The duration of the foregoing screen is approximately 3 seconds. (GX321 (Complaint 

Counsel) at 0:54-0:57). 

Absolute zero 

V so so 
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b. 2016 Super Bowl Advertisement

69. GX323 is a video recording of a 30-second television advertisement placed by Intuit that 

ran during the 2016 Super Bowl (the “Never a Sellout” advertisement). The Never a 

Sellout advertisement depicts an interview with the actor Sir Anthony Hopkins. (GX323 

(Complaint Counsel); GX342 (Complaint Counsel) ¶¶ 20, 25-26; see also Johnson 

(Intuit) Tr. 657-658). The following is a transcription of the words spoken in the Never a 

Sellout advertisement: 

INTERVIEWER: Sir Anthony Hopkins, every actor at some point 

considers selling out. 

SIR ANTHONY HOPKINS: I would never tarnish my name by selling 

you something. Now, if I were to tell you to go to turbotax.com, it’s 

because TurboTax AbsoluteZero lets you file your taxes for free.

INTERVIEWER: You’re . . . you’re not selling anything.

HOPKINS: It’s free. There’s nothing to sell. Come here, 

TurboTax.com. [dog jumps on his lap]. Such a good girl, 

TurboTax.com.

(GX323 (Complaint Counsel); GX342 (Complaint Counsel) ¶ 28; see also Johnson 

(Intuit) Tr. 660).

70. As the interview proceeds, at approximately the 0:18 mark of the 30-second Never a 

Sellout advertisement, the following screen appears:

The duration of the foregoing screen is approximately 2 seconds. (GX323 (Complaint 

Counsel) at 0:18-0:19).
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c. Television Advertisements for TY 2017

i. Fish

71. GX325 is a video recording of a 15-second television advertisement for TY 2017 placed 

by Intuit (the “Fish 15-second” advertisement). (GX325 (Intuit); GX342 (Complaint 

Counsel) ¶ 31; F. 75). The Fish 15-second advertisement depicts several men on a boat 

fishing, when one of the men is suddenly impaled by a swordfish. The following is a 

transcription of the words spoken in the Fish 15-second advertisement after the incident 

with the swordfish:

MAN: At least your taxes are free.

VOICE-OVER: Intuit TurboTax.

(GX325 (Intuit); GX342 (Complaint Counsel) ¶ 32).

72. Beginning at approximately the 0:02 mark of the Fish 15-second advertisement, while the 

action plays out, the following screen appears: 

The duration of the foregoing screen is approximately 3 seconds. (GX325 (Intuit) at 0:02-

0:05).

73. A 30-second version of the Fish advertisement (the “Fish 30-second” advertisement) 

depicts the same action as that described in F. 71. The following is a transcription of the 

words spoken in the Fish 30-second advertisement after the incident with the swordfish: 

MAN IMPALED BY SWORDFISH: Aww, man. My lucky shirt.

MAN WITH FISHING POLE: At least your taxes are free.

MAN CARRYING BEVERAGES: What happened? 
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MAN WITH FISHING POLE: It’s his lucky shirt.

MAN CARRYING BEVERAGES: Well, with TurboTax 

AbsoluteZero, at least your taxes are free.

MAN WITH FISHING POLE: That’s what I said!

VOICE-OVER: Intuit TurboTax.

(GX324 (Intuit); GX342 (Complaint Counsel) ¶ 30; see also Shiller (Complaint Counsel) 

Tr. 187).

74. At approximately the 0:02 mark of the Fish 30-second advertisement, the same screen as 

that depicted in F. 72 appears for approximately 3 seconds. (GX324 (Intuit) at 0:02-0:05).

75. The 15-second Fish advertisement and the 30-second Fish advertisement aired on 

television between January 17, 2018, and February 5, 2018. (GX60 (Intuit) at CC00000669; Shiller (Complaint Counsel) Tr. 186-187; GX324 (Intuit); GX342 (Complaint 

Counsel) ¶ 29; GX60 (Intuit) at CC-00000669).

ii. Guzman

76. GX344 is a video recording of a 15-second advertisement placed by Intuit for TY 2017 

(the “Guzman” advertisement). (GX344 (Intuit); GX342 (Complaint Counsel) ¶ 34; 

F. 79. The Guzman advertisement depicts the actor, Luis Guzman, appearing in a sheep 

costume on a farm, unhappy, and complaining about being “a wild tiger trapped in a 

man’s body trapped in sheep’s clothing.” (GX344 (Intuit)). He then says, smiling, “But 

hey, at least my taxes are free.” (GX344 (Intuit) at 0:08).

77. At approximately the 0:05 mark of the 15-second Guzman advertisement, as the actor 

says his lines, the following screen appears: 
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The duration of the foregoing screen is approximately 7 seconds. (GX344 (Intuit) at 0:05-

0:12).

78. Beginning at approximately the 0:08 mark of the 15-second Guzman advertisement, 

while the actor states “At least my taxes are free,” the following screen appears:

The duration of the foregoing screen is approximately 4 seconds. (GX344 (Intuit) at 0:08-

0:12).

79. The Guzman advertisement aired on television between January 31, 2018, and February 

20, 2018. (GX60 (Intuit) at CC-00000669).

iii. Cruise

80. GX345 is a video recording of a 30-second television advertisement placed by Intuit for 

TY 2017 (the “Cruise” advertisement). (GX345 (Intuit); GX342 (Complaint Counsel)

¶ 35; GX61 (Intuit) at CC-00000683).
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81. The Cruise advertisement depicts a man conversing with others on a cruise ship when he 

suddenly falls backwards into the water. Following the man’s falling into the water, his 

companions state: “Hey, at least your taxes are free. . . . With TurboTax AbsoluteZero, at 

least your taxes are free.” (GX345 (Intuit)). 

82. At approximately the 0:01 mark of the 30-second Cruise advertisement, as the action 

begins and the man falls overboard, the following screen appears:

The duration of the foregoing screen is approximately 4 seconds. (GX345 (Intuit) at 0:01-

0:05).

83. The Cruise advertisement aired on television between January 7, 2018, and January 26, 

2018. (GX60 (Intuit) at CC-00000669).

iv. Baby

84. GX346 is a video recording of a 15-second television advertisement for TY 2017 placed 

by Intuit (the “Baby” advertisement). (GX346 (Intuit); GX342 (Complaint Counsel) ¶ 36; 

GX61 (Intuit) at CC-00000683).

85. The Baby advertisement depicts a couple, neither of whom have red hair, cooing over a 

newborn baby with red hair at a hospital when they are suddenly interrupted by a male 

visitor with red hair. The nurse, observing the scene, tells the husband, “At least your 

taxes are free.” (GX346 (Intuit)).
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86. Beginning at approximately the 0:09 mark of the 15-second Baby advertisement, while 

the scene plays out, the following screen appears:

The duration of the foregoing screen is approximately 4 seconds. (GX346 (Intuit) at 0:09-

0:13).

87. At approximately the 0:14 mark of the 15-second Baby advertisement, just after the nurse 

states, “At least your taxes are free,” the following screen appears: 

The duration of the foregoing screen is approximately 1 second. (GX346 (Intuit) at 0:14-

0:15).

v. Anthem Launch

88. GX347 is a video recording of a 45-second advertisement for TY 2017 placed by Intuit 

(the “Anthem Launch” advertisement). (GX347 (Intuit); GX342 (Complaint Counsel)

¶ 37; GX61 (Intuit) at CC-00000683).
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89. The Anthem Launch advertisement begins by depicting a mechanic working under a car 

being crushed by the car. His coworker responds by stating: “With TurboTax 

AbsoluteZero, at least your taxes are free.” (GX347 (Intuit) at 0:06-0:09). A series of 

additional catastrophic scenes is shown, with the responding phrase “at least your taxes 

are free” repeated throughout. (GX347 (Intuit) at 0:10-0:39).

90. Beginning at approximately the 0:01 mark of the 45-second Anthem Launch 

advertisement, while the action plays out, the following screen appears:

The duration of the foregoing screen is approximately 3 seconds. (GX347 (Intuit) at 0:01-

0:04). 

91. At approximately the 0:43 mark of the 45-second Anthem Launch advertisement, the 

following screen appears for 2 seconds:

(GX347 (Intuit) at 0:43-0:45).
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d. Television Advertisements for TY 2018 

and TY 2019

i. Lawyer

92. GX328 is a video recording of a 60-second television advertisement for TY 2018 placed 

by Intuit (the “Lawyer 60-second” advertisement). (GX328 (Intuit); GX342 (Complaint 

Counsel) ¶ 56; GX60 (Intuit) at CC-00000668-669).

93. The Lawyer 60-second advertisement depicts a lawyer in a courtroom making an 

impassioned argument before a jury. (GX328 (Intuit)). 

94. The following is a transcription of the words spoken in the Lawyer 60-second 

advertisement:

LAWYER: Free free free free free free free free free free. Free free. 

Free free free free. Free free free. Free free free free free. Free free free 

free free free free free.

SECOND LAWYER: Free! Free! 

JUDGE: Free free. Free.

LAWYER: Free free free. Free free free free free free free free free. 

Free free free free free free free! Free free free free free. Free free free 

free. Free free free free free free!

JUROR: Free.

OTHER JURORS: Free. Free. Free. Free. Free. 

[jurors give lawyer a standing ovation]

UNIDENTIFIED VOICES: Free free free. 

VOICE-OVER: That’s right. TurboTax Free is free. Free, free free 

free.

(GX328 (Intuit); GX342 (Complaint Counsel) ¶ 57).
PUBLIC

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95. At approximately the 0:56 mark of the Lawyer 60-second advertisement, during the 

voice-over, the following screen appears:

The duration of the foregoing screen is approximately 2 seconds. (GX328 (Intuit) at 0:56-

0:58).

96. At approximately the 0:58 mark of the Lawyer 60-second advertisement, during the 

voice-over, the following screen appears:

The duration of the foregoing screen is approximately 2 seconds. (GX328 (Intuit) at 0:58-

1:00).

97. GX329 is a video recording of a 30-second television advertisement for TY 2018 placed 

by Intuit (the “Lawyer 30-second” advertisement), depicting the same action as F. 93. 

(GX329 (Intuit); GX60 (Intuit) at CC-00000668-669; GX61 (Intuit) at CC-00000682-

683).

98. The following is a transcription of the words spoken in the Lawyer 30-second

advertisement:
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LAWYER: Free free free free free free free free free. Free free free. 

Free free free. Free free free free free. Free free free free free free free 

free. Free free free free free free!

JUROR: Free.

OTHER JURORS: Free. Free. Free.

[jurors give lawyer a standing ovation]

UNIDENTIFIED VOICES: Free free free.

VOICE-OVER: That’s right. TurboTax Free is free. Free, free free 

free.

(GX329 (Intuit); GX342 (Complaint Counsel) ¶ 59; see also Shiller (Complaint Counsel) 

Tr. 182-183).

99. At approximately the 0:26 mark of the Lawyer 30-second advertisement, during the 

voice-over, the same screen as that depicted in F. 95 appears for approximately 1 second. 

(GX329 (Intuit) at 0:26-0:27).

100. At approximately the 0:27 mark of the Lawyer 30-second advertisement, during the 

voice-over, the same screen as that depicted in F. 96 appears for approximately 3 

seconds. (GX329 (Intuit) at 0:27-0:30; see also GX342 (Complaint Counsel) ¶ 156). 

101. The Lawyer 30-second advertisement and the Lawyer 60-second advertisement aired on 

television throughout the United States at least 2,115 times on at least 124 television 

networks between November 1, 2018, and April 18, 2019. (GX342 (Complaint Counsel)

¶¶ 60-61).

ii. Movie Credits

102. GX299 is a video recording of a 30-second television advertisement for TY 2018 placed 

by Intuit (the “Movie Credits 30-second” advertisement). (Shiller (Complaint Counsel) 

Tr. 183-184; GX299 (Intuit); GX342 (Complaint Counsel) ¶ 63; GX60 (Intuit) at CC00000668-669; GX61 (Intuit) at CC-00000682-683).

103. The Movie Credits 30-second advertisement depicts a man walking while throwing a 

lighter behind him. The lighter lands on the ground and causes an explosion behind the 

man, who continues to walk away. (GX299 (Intuit)). 

104. The following is a transcription of the words spoken in the Movie Credits 30-second 

advertisement:
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MAN: Free. Free free free. 

VOICE-OVER: That’s right. TurboTax Free is free. Free, free free 

free.

(GX299 (Intuit); GX342 (Complaint Counsel) ¶ 64; see also Shiller (Complaint Counsel) 

Tr. 184).

105. Beginning at approximately the 0:12 mark of the Movie Credits 30-second advertisement, 

and continuing to the 0:25 second mark, the movie “credits” begin rolling, consisting 

only of the words “free.” (GX299 (Intuit)). Representative screens are set forth below:

(GX299 (Intuit) at 0:12-0:25). 

106. At approximately the 0:26 second mark of the Movie Credits 30-second advertisement, 

during the voice-over, the following screen appears:
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27

The duration of the foregoing screen is approximately 1 second. (GX299 (Intuit) at 0:26-

0:28). 

107. At approximately the 0:28 mark of the Movie Credits 30-second advertisement, during 

the voice-over, the following screen appears:

The duration of the foregoing screen is approximately 2 seconds. (GX299 (Intuit) at 0:28-

0:30). 

108. GX330 is a video recording of a 30-second television advertisement for TY 2018 placed 

by Intuit (the “Movie Credits Version 2” advertisement). (GX330 (Intuit); GX60 (Intuit) 

at CC-00000668-669; GX61 (Intuit) at CC-00000682-683).

109. The Movie Credits Version 2 advertisement depicts the same action as that described in 

F. 103. (GX330 (Intuit); GX60 (Intuit) at CC-00000668-669; GX61 (Intuit) at CC00000682-683).

110. The words spoken in the Movie Credits Version 2 advertisement are the same as those in 

F. 104. (GX330 (Intuit); GX342 (Complaint Counsel) ¶ 66).
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111. At approximately the 0:27 mark of the Movie Credits Version 2 advertisement, during the 

voice-over, the following screen appears:

The duration of the foregoing screen is approximately 3 seconds. (GX330 (Intuit) at 0:27-

0:30). 

112. GX331 is a video recording of a 15-second television advertisement for TY 2018 placed 

by Intuit (the “Movie Credits 15-second” advertisement). (GX331 (Intuit); GX60 (Intuit) 

at CC-00000668-669; GX61 (Intuit) at CC-00000682-683). 

113. The words spoken in the Movie Credits 15-second advertisement are the same as those in 

F. 104. (GX331 (Intuit); GX342 (Complaint Counsel) ¶ 68). 

114. At approximately the 0:12 mark in the Movie Credits 15-second advertisement, during 

the voice-over, the same screen as shown in F. 107 appears, for approximately 3 seconds. 

(GX331 (Intuit) at 0:12-0:15). 

115. RX1400 is a video recording of a 15-second television advertisement for TY 2019 placed 

by Intuit (the “Movie Credits 15-second Version 2” advertisement). (RX1400 (Intuit); 

JX1 (Joint Stipulations of Law and Fact) ¶ 39; see Rubin (Intuit) Tr. 727, 1562). 

116. The Movie Credits 15-second Version 2 advertisement depicts the same action as that 

described in F. 103. (RX1400 (Intuit)). 

intuit 

✓ turbotaxfree 

Free, free free free. 

Free EdHion product only Fa simp6e U S retl.fns Offet' SUJiect to changl! See details at tut>otax oom 
PUBLIC

29

117. At approximately the 0:12 mark of the Movie Credits 15-second Version 2 

advertisement, during the voice-over, the following screen appears:

The duration of the foregoing screen is approximately 3 seconds. (RX1400 (Intuit) at 

0:12-0:15).

118. Collectively, the Movie Credits 30-second advertisement, the Movie Credits Version 2 

advertisement, and the Movie Credits 15-second advertisements appeared on television

throughout the United States at least 4,651 times on at least 195 television networks 

between November 1, 2018, and April 18, 2019 for TY 2018. (GX342 (Complaint 

Counsel) ¶¶ 69-70; Shiller (Complaint Counsel) Tr. 184; GX60 (Intuit) at CC-00000668-

669; GX61 (Intuit) at CC-00000682-683).

119. The Movie Credits 15-second Version 2 advertisement appeared throughout the United 

States at least 6,216 times on at least 721 television networks between November 1, 

2019, and July 15, 2020 for TY 2019. (GX342 (Complaint Counsel) ¶¶ 90-91; see also

Shiller (Complaint Counsel) Tr. 184; Rubin (Intuit) Tr. 727, 1562).

iii. Game Show

120. GX59 is a 39-second video recording containing a 30-second television advertisement for 

TY 2018 placed by Intuit (the “Game Show 30-second” advertisement). (Shiller 

(Complaint Counsel) Tr. 180-182; GX59 (Complaint Counsel); GX342 (Complaint 

Counsel) ¶ 51; GX60 (Intuit) at CC-00000668-669; GX61 (Intuit) at CC-00000682-683).

121. The Game Show 30-second advertisement depicts a man and a woman working together 

as contestants on a game show in which the woman must guess what the man is miming. 

“Free” is the only word spoken by the contestants and is repeated dozens of times. The 

scene concludes with the contestants celebrating winning the game. (GX59 (Complaint 

Counsel); Shiller (Complaint Counsel) Tr. 181). 
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122. At the end of the Game Show 30-second advertisement, at the 0:31 mark of the video 

recording, the following screen appears while the voice-over states “That’s right, 

TurboTax free is free. Free, free free free”:

The duration of the foregoing screen is approximately 2 seconds. (GX59 (Complaint 

Counsel) at 0:31-0:33). 

123. At the end of the Game Show 30-second advertisement, at the 0:33 mark of the video 

recording, during the voice-over, the following screen appears: 

The duration of the foregoing screen is approximately 2 seconds. GX59 (Complaint 

Counsel) at 0:33-0:35). 

1n+u1i-

✓ turbotaxfree 

Free, free free free. 

Stan nov. • turbota)r com 
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31

124. GX356 is a video recording of a 15-second television advertisement for TY 2018 placed 

by Intuit (the “Game Show 15-second” advertisement). (GX356 (Intuit); GX342 

(Complaint Counsel) ¶ 51; Shiller (Complaint Counsel) Tr. 181-182; GX60 (Intuit) at 

CC-00000668-669; GX61 (Intuit) at CC-00000682-683).

125. The Game Show 15-second advertisement depicts the same action as that described in 

F. 121. (GX356 (Intuit)).

126. At approximately the 0:11 mark of the Game Show 15-second advertisement, the same 

screen as shown in F. 122 appears while the voice-over states “That’s right, TurboTax 

free is free. Free, free free free.” The duration of the screen is approximately 2 seconds. 

(GX356 (Intuit) at 0:11-0:13).

127. At approximately the 0:13 mark of the Game Show 15-second advertisement, during the 

voice-over, the same screen as shown in F. 123 appears for approximately 2 seconds. 

(GX356 (Intuit) at 0:13-0:15).

128. The Game Show 30-second advertisement and the Game Show 15-second advertisement 

aired on television throughout the United States in connection with TY 2018 at least 

5,858 times on at least 140 networks between November 1, 2018, and April 18, 2019. 

(Shiller (Complaint Counsel) Tr. 181-182; GX60 (Intuit) at CC-00000668-669; GX61 

(Intuit) at CC-00000682-683; GX342 (Complaint Counsel) ¶¶ 54-55). 

129. RX1115 is a video recording of a 15-second television advertisement for TY 2019 placed 

by Intuit (the “Game Show TY 2019” advertisement). (RX1115 (Intuit); JX1 (Joint 

Stipulations of Law and Fact) ¶ 41; see Shiller (Complaint Counsel) Tr. 181-182, 244-

245). 

130. The Game Show TY 2019 advertisement depicts the same action as that described in 

F. 121. (RX1115 (Intuit)).

131. At approximately the 0:11 mark of the Game Show TY 2019 advertisement, the 

following screen appears while the voice-over states “That’s right, TurboTax free is free. 

Free, free free free”:
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The duration of the foregoing screen is approximately 2 seconds. (RX1115 (Intuit) at 

0:11-0:13). 

132. At approximately the 0:13 mark of the Game Show TY 2019 advertisement, during the 

voice-over, the following screen appears:

The duration of the foregoing screen is approximately 2 seconds. (RX1115 (Intuit) at 

0:13-0:15). 

133. The Game Show TY 2019 advertisement appeared throughout the United States at least 

4,656 times on at least 214 television networks between November 1, 2019, and July 15, 

2020. (GX342 (Complaint Counsel) ¶¶ 88-89; see also Shiller (Complaint Counsel) Tr. 

181-182). 

✓ 1ntu1t 

turbotax. F ree Edition 

Turbo Tax Free Edition is for 5,1mple U.S. returns only See if you qualify at turbot.ax.com. Offer -.ubJect to change 
PUBLIC

33

iv. Court Reporter

134. GX348 is a video recording of a 15-second television advertisement for TY 2019 placed 

by Intuit (the “Court Reporter” advertisement). (Shiller (Complaint Counsel) Tr. 176-

177; GX348 (Intuit); GX342 (Complaint Counsel) ¶¶ 39-41, 84-85).

135. The Court Reporter advertisement depicts a legal proceeding in which the court 

stenographer reads back a transcript consisting only of the word “free.” The word “free” 

is repeated approximately 18 times. (GX348 (Intuit); GX342 (Complaint Counsel) ¶ 39).

136. At approximately the 0:09 mark of the 15-second Court Reporter advertisement, the 

following screen is shown while a voice-over states “That’s right, TurboTax Free is free. 

Free, free free free”:

The duration of the foregoing screen is approximately 2 seconds. (GX348 (Intuit) at 0:09-

0:11; see also Shiller (Complaint Counsel) Tr. 176).

137. At approximately the 0:11 mark of the 15-second Court Reporter advertisement, during 

the voice-over, the following screen is shown:

The duration of the foregoing screen is approximately 4 seconds. (GX348 (Intuit) at 0:11-

0:15). 
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138. The Court Reporter advertisement appeared on television throughout the United States at 

least 1,358 times on at least 112 television networks between November 1, 2018, and 

April 18, 2019. (GX342 (Complaint Counsel) ¶¶ 40-41; see also Shiller (Complaint 

Counsel) Tr. 177). 

139. RX1112 is a video recording of a 15-second television advertisement for TY 2019 placed 

by Intuit (the “Court Reporter TY 2019” advertisement). (RX1112 (Intuit); JX1 (Joint 

Stipulations of Law and Fact) ¶ 38; Ryan (Intuit) Tr. 726-727; Rubin (Intuit) Tr. 1560-

1563). 

140. The Court Reporter TY 2019 advertisement depicts the same action as that described in 

F. 135. (RX1112 (Intuit)). 

141. At approximately the 0:09 mark of the 15-second Court Reporter TY 2019 advertisement, 

during the voice-over, the following screen appears: 

The duration of the foregoing screen is approximately 2 seconds. (RX1112 (Intuit) at 

0:09-0:11). 

142. At approximately the 0:12 mark of the 15-second Court Reporter TY 2019 advertisement, 

during the voice-over, the following screen appears: 

✓ 1ntu1+ 

turbotax. Free Edition 

Turbo Tax Free Edition is for simple U.S. returns only. See if you qualify at turbotilx.com. Offer subject to change. 
PUBLIC

35 

The duration of the foregoing screen is approximately 3 seconds. (RX1112 (Intuit) at 

0:12-0:15). 

143. The Court Reporter TY 2019 advertisement appeared on television throughout the United 

States at least 1,502 times on at least 126 television networks between November 1, 

2019, and July 15, 2020. (GX342 (Complaint Counsel) ¶¶ 84-85; see also Shiller 

(Complaint Counsel) Tr. 177). 

v. Crossword

144. GX326 is a video recording of a 15-second advertisement for TY 2018 placed by Intuit 

(the “Crossword” advertisement) that appeared on television throughout the United States 

at least 1,187 times on at least 55 television networks between November 1, 2018, and 

April 18, 2019. (Shiller (Complaint Counsel) Tr. 177-179; GX326 (Complaint Counsel); 

GX342 (Complaint Counsel) ¶¶ 42, 44-45; GX61 (Intuit) at CC-00000682-683).

145. The Crossword advertisement depicts a man sitting at a kitchen table working on a 

crossword puzzle where all the answers to the puzzle are the word “free.” (GX326 

(Complaint Counsel); GX342 (Complaint Counsel) ¶ 42).

146. At approximately the 0:10 mark of the 15-second Crossword advertisement, the 

following screen appears while the voice-over says “That’s right, TurboTax Free is free”: 

The duration of the foregoing screen is approximately 3 seconds. (GX326 (Complaint 

Counsel) at 0:10-0:13). \·.,\\'\\\ '\\t\ I 
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147. At approximately the 0:13 mark of the 15-second Crossword advertisement, the 

following screen appears while the voice-over says “Free, free free free”:

(GX326 (Complaint Counsel) at 0:10-0:15). 

148. RX1398 is a video recording of a 15-second television advertisement for TY 2019 placed 

by Intuit (the “Crossword TY 2019” advertisement) which appeared on television 

throughout the United States at least 3,195 times on at least 327 television networks 

between November 1, 2019, and July 15, 2020. (RX1398 (Intuit); JX1 (Joint Stipulations 

of Law and Fact) ¶ 40; GX342 (Complaint Counsel) ¶¶ 86-87; see also Shiller 

(Complaint Counsel) Tr. 178-179).

149. The Crossword TY 2019 advertisement depicts the same action as that described in 

F. 145. 

150. At approximately the 0:10 mark of the 15-second Crossword TY 2019 advertisement, the 

following screen appears while the voice-over says “That’s right, TurboTax Free is free”:

The duration of the foregoing screen is approximately 3 seconds. (RX1398 (Intuit) at 

0:10-0:13). 
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151. At approximately the 0:13 mark of the 15-second Crossword TY 2019 advertisement, the 

following screen appears while the voice-over states “Free, free free free”:

The duration of the foregoing screen is approximately 2 seconds. (RX1398 (Intuit) at 

0:13-0:15). 

vi. Football/Big Kick

152. GX349 is a video recording of a 60-second television advertisement for TY 2017 placed 

by Intuit (the “Big Kick 60-second” advertisement). (GX349 (Intuit); GX342 (Complaint 

Counsel) ¶ 48; GX60 (Intuit) at CC-00000668-669). 

153. GX327 is a video recording of a 30-second television advertisement for TY 2018 placed 

by Intuit (the “Big Kick 30-second” advertisement). (Shiller (Complaint Counsel) Tr. 

179-180; GX327 (Complaint Counsel); GX342 (Complaint Counsel) ¶ 46; GX61 (Intuit) 

at CC-00000682-683). 

154. Both the Big Kick 60-second advertisement and the Big Kick 30-second advertisement 

depict a young football player playing football while reminiscing about his father. “Free” 

is the only word spoken by the football player and the father. (GX327 (Complaint 

Counsel); GX349 (Intuit); GX342 (Complaint Counsel) ¶ 46).

✓ 1ntu1t 

turbotax. Free Edit ion 

Turbo Tax Free Edition is for simple U.S. returns only. See if you qualify at turbotax.com . Offer subject to change. 
PUBLIC

38

155. At approximately the 0:26 mark of the Big Kick 30-second advertisement, the following 

screen appears while the voice-over says “That’s right, TurboTax Free is free”:

The duration of the foregoing screen is approximately 2 seconds. (GX327 (Complaint 

Counsel) at 0:26-0:28). 

156. At approximately the 0:28 mark of the Big Kick 30-second advertisement, the following 

screen appears while the voice-over says “Free, free free free”:

The duration of the foregoing screen is approximately 2 seconds. (GX327 (Complaint 

Counsel) at 0:28-0:30).

157. At approximately the 0:57 mark of the Big Kick 60-second advertisement, during the 

voice-over, the same screen as that shown in F. 155 appears for approximately 2 seconds. 

(GX349 (Complaint Counsel) at 0:57-0:59). 

158. At approximately the 0:58 mark of the Big Kick 60-second advertisement, during the 

voice-over, the same screen as that shown in F. 156 appears for approximately 2 seconds. 

(GX349 (Complaint Counsel) at 0:58-01:00). 
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159. Collectively, the Big Kick 60-second advertisement and the Big Kick 30-second 

advertisement appeared on television throughout the United States at least 2,811 times on 

at least 139 television networks between November 1, 2018, and April 18, 2019. (GX342 

(Complaint Counsel) ¶¶ 49-50; see also Shiller (Complaint Counsel) Tr. 180).

vii. Spelling Bee

160. GX350 is a video recording of a 30-second television advertisement for TY 2018 placed 

by Intuit (the “Spelling Bee Version 1” advertisement). (GX350 (Intuit); Shiller 

(Complaint Counsel) Tr. 186; GX60 (Intuit) at CC-00000668-669; GX61 (Intuit) at CC00000682-683).

161. The Spelling Bee Version 1 advertisement depicts a spelling bee in which “free” is the 

word that the contestant undertakes to spell. (GX350 (Intuit)).

162. At approximately the 26-second mark of the 30-second Spelling Bee Version 1 

advertisement, the following screen appears while the voice-over says “That’s right, 

TurboTax Free is free”:

The duration of the foregoing screen is approximately 2 seconds. (GX350 (Intuit) at 0:26-

0:28). 
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163. At approximately the 28-second mark of the 30-second Spelling Bee Version 1 

advertisement, the following screen appears while the voice-over says “Free, free free 

free”:

The duration of the foregoing screen is approximately 2 seconds. (GX350 (Intuit) at 0:28-

0:30). 

164. GX351 is a video recording of a 30-second television advertisement for TY 2018 placed 

by Intuit (the “Spelling Bee Version 2” advertisement), depicting the same action as that 

described in F. 161. (GX351 (Intuit); Shiller (Complaint Counsel) Tr. 186; GX60 (Intuit) 

at CC-00000668-669; GX61 (Intuit) at CC-00000682-683).

165. At approximately the 26-second mark of the 30-second Spelling Bee Version 2 

advertisement, the following screen appears while the voice-over says “That’s right, 

TurboTax Free is free”:

The duration of the foregoing screen is approximately 2 seconds. (GX351 (Intuit) at 0:26-

0:28). 
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166. At approximately the 28-second mark of the 30-second Spelling Bee Version 2 

advertisement, the following screen appears while the voice-over says “Free, free free 

free”:

The duration of the foregoing screen is approximately 2 seconds. (GX351 (Intuit) at 0:28-

0:30). 

167. GX332 is a video recording of a 15-second television advertisement for TY 2018 placed 

by Intuit, depicting the same action as that described in F. 161 (the “Spelling Bee 15-

second” advertisement). (GX332 (Complaint Counsel); Shiller (Complaint Counsel) Tr. 

186; GX60 (Intuit) at CC-00000668-669; GX61 (Intuit) at CC-00000682-683). 

168. At approximately the 0:11 mark of the Spelling Bee 15-second advertisement, the 

following screen appears while the voice-over says “That’s right, TurboTax Free is free”: 

The duration of the foregoing screen is approximately 2 seconds. (GX332 (Complaint 

Counsel) at 0:11-0:13). 

intuit 

✓ turbotax.free 

Free, free free free. 
PUBLIC

42

169. At approximately the 0:13 mark of the Spelling Bee 15-second advertisement, the 

following screen appears while the voice-over says “Free, free free free”:

The duration of the foregoing screen is approximately 2 seconds. (GX332 (Complaint 

Counsel) at 0:13-0:15). 

170. The Spelling Bee Version 1 advertisement, the Spelling Bee Version 2 advertisement, 

and the Spelling Bee 15-second Advertisement appeared throughout the United States at 

least 5,141 times on at least 313 television networks between November 1, 2018, and 

April 18, 2019. (GX342 (Complaint Counsel) ¶¶ 74-75; see also Shiller (Complaint 

Counsel) Tr. 186).

171. RX1399 is a video recording of a 15-second television advertisement for TY 2019 placed 

by Intuit (the “Spelling Bee 15-second Version 2” advertisement). (RX1399 (Intuit); JX1 

(Joint Stipulations of Law and Fact) ¶ 42; Shiller (Complaint Counsel) Tr. 186; see Ryan 

(Intuit) Tr. 726-727; Rubin (Intuit) Tr. 1560-1563).

172. RX1399 depicts the same action as described in F. 161. (RX1399 (Intuit)). 

173. At approximately the 0:11 mark of the Spelling Bee 15-second Version 2 advertisement, 

during the voice-over, the following screen appears:
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The duration of the foregoing screen is approximately 2 seconds. (RX1399 (Intuit) at 

0:11-0:13). 

174. At approximately the 0:13 mark of the Spelling Bee 15-second Version 2 advertisement, 

during the voice-over, the following screen appears: 

The duration of the foregoing screen is approximately 2 seconds. (RX1399 (Intuit) at 

0:13-0:15). 

175. The Spelling Bee 15-second Version 2 advertisement appeared throughout the United 

States at least 2,618 times on at least 322 television networks between November 1, 

2019, and July 15, 2020. (GX342 (Complaint Counsel) ¶¶ 92-93; see also Shiller 

(Complaint Counsel) Tr. 186; Ryan (Intuit) Tr. 726-727; Rubin (Intuit) Tr. 1560-1563). 

✓ 1ntu1t 

turbotax. Free Edition 

Turbo Tax Free Edition is for simple U.S. returns only. See if you qualify at turbotax.com. Offer sub1ect to change 
PUBLIC

44

e. Television Advertisements for TY 2020 

and TY 2021

i. Auctioneer

176. GX202 is a video recording of a 15-second advertisement placed by Intuit, depicting a 

cattle auction in which the only word spoken by the auctioneer is the word “free” (the 

“Auctioneer” advertisement). (GX202 (Complaint Counsel); GX342 (Complaint 

Counsel) ¶ 130).

177. The following is a transcription of the words spoken in the Auctioneer advertisement:

AUCTIONEER: And free, and free, and free, and free, and free. Now a bidder 

and free! Now give me another bidder and free and a free here and a free free 

free a free free free. Now a bidder and free! Now give me another bidder and 

free, and a free free free. And free, and free here, and free there, and free free 

and free. Make it Free. Free! 

VOICE-OVER: That’s right. TurboTax Free Edition is Free. See details at 

TurboTax.com.

(GX342 (Complaint Counsel) ¶ 130; GX202 (Complaint Counsel)).

178. At approximately the 0:11 mark of the Auctioneer advertisement, during the voice-over, 

the following screen is shown:

The duration of the foregoing screen is approximately 2 seconds. (GX202 (Complaint 

Counsel) at 0:11-0:13). 
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179. At approximately the 0:13 mark of the Auctioneer advertisement, during the voice-over, 

the following screen is shown:

The duration of the foregoing screen is approximately 2 seconds. (GX202 (Complaint 

Counsel) at 0:13-0:15).

180. The Auctioneer advertisement appeared on television throughout the United States at 

least 8,281 times on at least 670 television networks between November 1, 2020, and 

May 17, 2021. (GX342 (Complaint Counsel) ¶¶ 106-107; see also Shiller (Complaint 

Counsel) Tr. 167-168).

181. The Auctioneer advertisement appeared on television throughout the United States at 

least 1,876 times on at least 86 television networks between November 1, 2021, and April 

18, 2022. (GX342 (Complaint Counsel) ¶¶ 133-134; see also Shiller (Complaint Counsel) 

Tr. 167-168).

ii. Dance Workout

182. GX208 is a video recording of a 15-second television advertisement placed by Intuit (the 

“Dance Workout 15-second” advertisement), depicting a dance instructor leading a dance 

exercise class. (GX208 (Complaint Counsel); GX342 (Complaint Counsel) ¶ 136).

183. The following is a transcription of the words spoken in the Dance Workout 15-second 

advertisement: 

DANCE WORKOUT INSTRUCTOR: Free! And free! And free! And free! 

Free. And free, and free. Free free. And free, and free, and free, and free, and 

free. 

VOICE-OVER: That’s right, TurboTax Free Edition is free. See details at 

TurboTax.com.

(GX208 (Complaint Counsel); GX342 (Complaint Counsel) ¶ 136).
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184. At approximately the 0:10 mark of the Dance Workout 15-second advertisement, during 

the voice-over, the following screen appears:

The duration of the foregoing screen is approximately 2 seconds. (GX208 (Complaint 

Counsel) at 0:10-0:12). 

185. At approximately the 0:12 mark of the Dance Workout 15-second advertisement, during 

the voice-over, the following screen appears: 

The duration of the foregoing screen is approximately 3 seconds. (GX208 (Complaint 

Counsel) at 0:12-0:15). 

186. The Dance Workout 15-second advertisement appeared throughout the United States at 

least 9,909 times on 714 television networks between November 1, 2020, and May 17, 

2021. (GX342 (Complaint Counsel) ¶¶ 109-110; see also Shiller (Complaint Counsel) Tr. 

171). 

• • lnTUIT 

✓ turbotax. Free Edition 

_'-._,_.,.__u~ _..,.._._...,., ........ ,..., on._ .. ,...,,._ 
PUBLIC

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187. The Dance Workout 15-second advertisement appeared throughout the United States at 

least 7,988 times on at least 623 television networks between November 1, 2021, and 

April 18, 2022. (GX342 (Complaint Counsel) ¶¶ 139-140; see also Shiller (Complaint 

Counsel) Tr. 171).

iii. Dog Show 

188. GX204 is a video recording of a 15-second television advertisement for TY 2020 and TY 

2021 placed by Intuit (the “Dog Show” advertisement). (Shiller (Complaint Counsel) Tr. 

172-173; GX204 (Complaint Counsel); GX342 (Complaint Counsel) ¶¶ 112-113, 141).

189. The Dog Show advertisement depicts a dog competition in which a judge is evaluating 

four dog finalists. (GX204 (Complaint Counsel)). 

190. The following is a transcription of the words spoken in the Dog Show advertisement:

DOG SHOW JUDGE: Free, free, free!

WINNING DOG HANDLER: Free! Free! 

VOICE-OVER: That’s right, TurboTax Free Edition is free. See details at 

TurboTax.com.

(GX204 (Complaint Counsel); GX342 (Complaint Counsel) ¶ 143; see also Shiller 

(Complaint Counsel) Tr. 172).

191. At approximately the 0:10 mark of the 15-second Dog Show advertisement, during the 

voice-over, the following screen appears: 
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The duration of the foregoing screen is approximately 2 seconds. (GX204 (Complaint 

Counsel) at 0:10-0:12). 

192. At approximately the 0:13 mark of the 15-second Dog Show advertisement, during the 

voice-over, the following screen appears:

The duration of the foregoing screen is approximately 2 seconds. (GX204 (Complaint 

Counsel) at 0:13-0:15). 

193. The Dog Show advertisement appeared on television throughout the United States at least 

10,435 times on 685 television networks between November 1, 2020, and May 17, 2021. 

(GX342 (Complaint Counsel) ¶¶ 112-113; see also Shiller (Complaint Counsel) Tr. 173).

194. The Dog Show advertisement appeared on television throughout the United States at least 

4,559 times on at least 499 television networks between November 1, 2021, and April 18, 

2022. (GX342 (Complaint Counsel) ¶¶ 144-145; see also Shiller (Complaint Counsel) Tr. 

173).

iv. Steven/Spit Take

195. GX307 is a video recording of a 14-second television advertisement for TY 2021 placed 

by Intuit (the “Steven/Spit Take 14-second” advertisement). (Shiller (Complaint Counsel) 

Tr. 173-175; GX307 (Complaint Counsel); GX342 (Complaint Counsel) ¶¶ 147, 154-

155).

196. The following is a description of the Steven/Spit Take 14-second advertisement:

VOICE-OVER: Steven, did you know that a TurboTax Live expert can do 

your simple tax return for you? 

Steven: Hmm

VOICE-OVER: For free.
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[Steven spits out coffee]

VOICE-OVER: It is true. For limited time TurboTax is free for simple returns 

even when an expert files for you.

(GX307 (Complaint Counsel); GX342 (Complaint Counsel) ¶ 149; see also Shiller 

(Complaint Counsel) Tr. 174-175).

197. At approximately the 0:09 mark of the Steven/Spit Take 14-second advertisement, during 

the voice-over, the following screen appears:

The duration of the foregoing screen is approximately 5 seconds. (GX307 (Complaint 

Counsel) at 0:09-0:14). 

198. GX309 is a video recording of a 28-second television advertisement placed by Intuit (the 

“Steven/Spit Take 28-second” advertisement). (GX309 (Complaint Counsel); GX342 

(Complaint Counsel) ¶ 151).

199. The following is a description of the Steven/Spit Take 28-second advertisement:

VOICE-OVER: Steven, did you know that TurboTax is free no matter how 

you want to file?

[Steven spits out mouthful of coffee]

Steven: I don’t believe that.

VOICE-OVER: It’s true. Anyone with a simple tax return can get help from 

an expert, for free.

[Steven spits out coffee again]
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Steven: That can’t be true.

VOICE-OVER: It is and with TurboTax Live our experts will even do your 

taxes for you for free.

[Steven spits coffee a third time]

Other man: Honestly, that sounds amazing.

VOICE-OVER: For a limited time TurboTax is free for simple returns no 

matter how you file.

(GX309 (Complaint Counsel); GX342 (Complaint Counsel) ¶ 153).

200. At approximately the 0:24 mark of the Steven/Spit Take 28-second advertisement, during 

the voice-over, the following screen appears:

The duration of the foregoing screen is approximately 4 seconds. (GX309 (Complaint 

Counsel) at 0:24-0:28; GX310 (Complaint Counsel)).

201. Collectively, the Steven/Spit Take 14-second advertisement and the Steven/Spit Take 28-

second advertisement appeared throughout the United States at least 13,341 times on at 

least 637 television networks between November 1, 2021, and April 18, 2022. (GX342 

(Complaint Counsel) ¶¶ 154-155; see also Shiller (Complaint Counsel) Tr. 175).

202. The Steven/Spit Take 14-second advertisement aired during the live broadcast of the 

Oscars on March 27, 2022. (GX312 (Complaint Counsel) ¶ 34; GX307 (Complaint 

Counsel)). 

3. Radio Advertising

203. In TY 2020 and TY 2021, Intuit marketed its TurboTax Free Edition product on the 

radio. (RRCCFF ¶ 195; see JX1 (Joint Stipulations of Law and Fact) ¶ 19). 
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a. Radio Advertisements for TY 2020 

204. GX627 is an audio recording of a 31-second radio advertisement for TY 2020 placed by 

Intuit (the “31-second Radio” advertisement). (GX627 (Intuit); RRCCFF ¶ 196).

205. The 31-second Radio advertisement consists of a jingle in which the word “free” is the 

only word sung and is repeated approximately 32 times. (GX627 (Intuit)).

206. The following words are spoken at approximately the 0:22 mark of the 31-second Radio 

advertisement: “That’s right, TurboTax Free is free. Free, free free free.” (GX627 (Intuit) 

at 0:22-0:26).

207. At approximately the 0:26 mark of the 31-second Radio advertisement, while the jingle is 

still playing in the background, the following words are spoken at a significantly faster 

rate than the rest of the radio advertisement: “Free Edition product only. For simple U.S. 

returns. Offer subject to change. See details at turbotax.com.” (GX627 (Intuit) at 0:26-

0:31).

208. GX630 is an audio recording of a 31-second radio advertisement for TY 2020 placed by 

Intuit (the “31-second Radio Version 2” advertisement). (GX630 (Intuit); RRCCFF

¶ 200).

209. The 31-second Radio Version 2 advertisement consists of a jingle in which the word 

“free” is the only word sung and is repeated approximately 27 times. (GX630 (Intuit)). 

210. At approximately the 0:21 mark of the 31-second Radio Version 2 advertisement, the 

following words are spoken: “That’s right, TurboTax Free is free. Free, free free free.” 

(GX630 (Intuit) at 0:21-0:25).

211. At approximately the 0:26 mark of the 31-second Radio Version 2 advertisement, while 

the jingle is still playing in the background, the following words are spoken at a 

significantly faster rate than the rest of the radio advertisement: “Free Edition product 

only. For simple U.S. returns. Offer subject to change. See details at turbotax.com.” 

(GX630 (Intuit) at 0:26-0:31).

b. Radio Advertisements for TY 2021 

212. GX617 is an audio recording of a 30-second radio advertisement for TY 2021 placed by 

Intuit (the “30-second Radio” advertisement). (GX617 (Intuit); RRCCFF ¶ 204).

213. The 30-second Radio advertisement consists of a jingle in which the word “free” is the 

only word sung and is repeated approximately 32 times. (GX617 (Intuit)).
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214. At approximately the 0:21 mark of the 30-second Radio advertisement, the following 

words are spoken: “That’s right, TurboTax Free Edition is free. Free, free free free.” 

(GX617 (Intuit) at 0:21-0:25).

215. At approximately the 0:25 mark of the 30-second Radio advertisement, while the jingle is 

still playing in the background, the following words are spoken at a significantly faster 

rate than the rest of the advertisement: “TurboTax Free Edition is for simple U.S. returns 

only. See if you qualify at turbotax.com. Offer subject to change.” (GX617 (Intuit) at 

0:25-0:30).

216. GX618 is an audio recording of a 30-second radio advertisement for TY 2021 placed by 

Intuit (the “30-second Radio Version 2” advertisement). (GX618 (Intuit); RRCCFF 

¶ 208).

217. The 30-second Radio Version 2 advertisement consists of a jingle in which the word 

“free” is the only word sung and is repeated approximately 27 times. (GX618 (Intuit)).

218. At approximately the 0:20 mark of the 30-second Radio Version 2 advertisement, the 

following words are spoken: “That’s right, TurboTax Free Edition is free. Free, free free 

free.” (GX618 (Intuit) at 0:20-0:24).

219. At approximately the 0:24 mark of the 30-second Radio Version 2 advertisement, while 

the jingle is still playing in the background, the following words are spoken at a 

significantly faster rate than the rest of the advertisement: “TurboTax Free Edition is for 

simple U.S. returns only. See if you qualify at turbotax.com. Offer subject to change.” 

(GX618 (Intuit) at 0:24-0:30).

4. Online Advertising

220. Online advertisements include traditional display advertisements, such as banners 

displayed on websites, and display or video advertisements placed on social media sites 

such as TikTok, Facebook, or Snapchat. (Ryan (Intuit) Tr. 693; GX156 (Ryan (Intuit) 

IHT) at 27). F. 230-252, 254-256 are screenshots of display advertisements that appear 

online in non-video, or static, format (“Non-Video Display”). F. 259-269, 273-289 are 

screenshots from display advertisements that appear online in moving, or non-static, 

format of short duration (“Video Display”). Collectively, Non-Video Display and Video 

Display are referred to as “Display Advertisements.” F. 290-317 are online video 

advertisements appearing in connection with online video content, such as YouTube 

videos (“Online Video Advertisements”). Collectively, Display Advertisements, Video 

Display, and Online Video Advertisements are referred to as “Online Advertisements.” 

Paid search advertisements that appeared online are addressed separately in section 

II.B.6.

221. In TY 2020 and TY 2021, Online Advertisements for TurboTax free products generated 

over 15 billion impressions and were clicked on over 130 million times. (Baburek 
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(Complaint Counsel) Tr. 318-323, 337; GX Summary 002 (Complaint Counsel) (Data 

Online Advertisements Combined)).

222. Two TurboTax YouTube Online Video Advertisements (GX200 and GX206) alone 

received over 15 million views in total. (Shiller (Complaint Counsel) Tr. 272; GX342 

(Complaint Counsel) ¶¶ 129, 135).

223. Each of the Display Advertisements contained one of the following phrases in writing: 

“simple tax returns only,” “simple U.S. returns only,” or “simple tax returns.” (F. 226-

289; CCRRFF 248).

224. Most of the Display Advertisements contain the name of a TurboTax free product, such 

as TurboTax Free Edition or TurboTax Live Basic. (See GX173 (Intuit); GX174-A 

(Intuit); GX175-A (Intuit); GX187 (Intuit); GX188 (Intuit); GX189 (Intuit); GX196 

(Intuit); GX197 (Intuit); GX198 (Intuit); GX199 (Intuit); GX505 (Intuit); GX506 (Intuit); 

GX507 (Intuit); GX508 (Intuit); GX509 (Intuit); GX511 (Intuit); GX512 (Intuit); GX513

(Intuit); GX514 (Intuit); GX515 (Intuit); GX516 (Intuit); GX517 (Intuit); GX519 (Intuit); 

GX520 (Intuit); GX521 (Intuit); GX523 (Intuit); GX524 (Intuit); GX525 (Intuit); GX526

(Intuit); GX527 (Intuit); GX528 (Intuit); GX529 (Intuit); GX530 (Intuit); GX531 (Intuit); 

GX532 (Intuit); GX533 (Intuit); GX534 (Intuit); GX535 (Intuit); GX536 (Intuit); GX537

(Intuit); GX538 (Intuit); GX542 (Intuit); GX543 (Intuit); GX545 (Intuit); GX546 (Intuit); 

GX547 (Intuit); GX549 (Intuit); GX550 (Intuit); GX551 (Intuit); GX552 (Intuit); GX553

(Intuit); GX554 (Intuit); GX556 (Intuit); GX557 (Intuit); GX558 (Intuit); GX559 (Intuit); 

GX561 (Intuit); GX562 (Intuit); GX563 (Intuit); GX564 (Intuit); GX566 (Intuit); GX569

(Intuit); GX583 (Intuit); GX584 (Intuit); GX585 (Intuit); GX586 (Intuit); GX588 (Intuit); 

GX600 (Intuit); GX843 (Intuit); RX139 (Intuit); CCRRFF 250). 

225. Consumers who clicked on Display Advertisements for TurboTax Free Edition were 

taken directly to the TurboTax Free Edition page on TurboTax’s website, referred to as a 

“landing page.” In particular instances, where the advertisements prompted the viewer to 

“get the app” (see, e.g., GX511 (Intuit), GX513 (Intuit), GX515 (Intuit), GX534 (Intuit), 

GX555 (Intuit), GX596 (Intuit)), consumers were directed to an application store to 

download the TurboTax mobile application. (Johnson (Intuit) Tr. 595-596; Rubin (Intuit) 

Tr. 1563-1565; Ryan (Intuit) Tr. 697; JX1 (Joint Stipulations of Law and Fact) ¶ 61).

a. Non-Video Display Advertisements for TY 2020 and TY 2021

226. In most of the Non-Video Display Advertisements, words such as “simple returns only,” 

“simple U.S. returns only,” or “simple tax returns,” are much less prominent than the 

language or images of “free” or “$0.” (GX173 (Complaint Counsel); GX189 (Complaint 

Counsel); GX189-A (Complaint Counsel); GX199 (Complaint Counsel); GX505 (Intuit);

GX508 (Intuit); GX527 (Intuit); GX534 (Intuit); GX551 (Intuit); GX552 (Intuit); GX553

(Intuit); GX556 (Intuit); GX566 (Intuit); GX574 (Intuit); GX575 (Intuit); GX580 (Intuit);

GX585 (Intuit); GX586 (Intuit); GX587 (Intuit); GX588 (Intuit); GX596 (Intuit)).
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227. Some of the Non-Video Display Advertisements do not contain the name of a TurboTax 

free product, such as Basic or Free Edition, but instead reference only TurboTax. (E.g., 

GX574 (Intuit); GX575 (Intuit); GX580 (Intuit); GX587 (Intuit); GX596 (Intuit)).

228. Many of the Non-Video Display Advertisements that refer to a particular TurboTax free 

product, such as Basic or Free Edition, do so in much smaller and/or lighter, less 

noticeable font, in comparison to the TurboTax logo. (E.g., GX173 (Complaint Counsel); 

GX189 (Complaint Counsel); GX189-A (Complaint Counsel); GX196 (Complaint 

Counsel); GX198 (Complaint Counsel); GX508 (Intuit); GX527 (Intuit); GX551 (Intuit);

GX552 (Intuit); GX553 (Intuit); GX554 (Intuit); GX555 (Intuit); GX556 (Intuit); GX585

(Intuit); GX586 (Intuit); GX588 (Intuit)). 

229. Some of the Non-Video Display Advertisements that refer to a particular TurboTax free 

product, such as Basic or Free Edition, do so in slightly smaller and/or lighter, less 

noticeable font, in comparison to the TurboTax logo. (E.g., GX505 (Intuit); GX506

(Intuit); GX507 (Intuit); GX534 (Intuit)). 

230. GX505 is a Non-Video Display Advertisement placed by Intuit for TY 2020. A 

screenshot of GX505 is pictured below. 

(GX505 (Intuit)). 

231. GX506 is a Non-Video Display Advertisement placed by Intuit for TY 2020. A 

screenshot of GX506 is pictured below. 

(GX506 (Intuit)). 

mtu,t 

✓ turbotax~ 

Basic 

Free Fed & State, PLUS 

i ,,. FREE EXPERT REVIEW 

l \ • 

100%FREE 

Simple tax returns only 

~ $0 r&d. so Stat&. SO To F,la. turbotax. Simple tax retums only Fn~e Ed1t100 

Must 

File by 

2/15 
PUBLIC

55 

232. GX507 is a Non-Video Display Advertisement placed by Intuit for TY 2020. A 

screenshot of GX507 is pictured below. 

(GX507 (Intuit)). 

233. GX508 is a Non-Video Display Advertisement placed by Intuit for TY 2020. A 

screenshot of GX508 is pictured below. 

(GX508 (Intuit)). 

234. GX527 is a Non-Video Display Advertisement placed by Intuit for TY 2020. A 

screenshot of GX527 is pictured below. 

✓ Filg F9d & Staw FREE. ---

Free 

turbotax

Edition . Simpl-i t ax rgturns only. ~ 
PUBLIC

56 

 (GX527 (Intuit)). 

235. GX534 is a Non-Video Display Advertisement placed by Intuit for TY 2020. A 

screenshot of GX534 is pictured below. 

(GX534 (Intuit)). 

236. GX173 is a Non-Video Display Advertisement placed by Intuit for TY 2020. A 

screenshot of GX173, as displayed on Facebook on February 11, 2021, is pictured below: 

turbot 

,nn,,;- ~ ax:. Free Edition 

FREE 

guaranteed -- State 

Simple tax returns only 

Get App 

so 

To File 

IVlaximum refund, guaranteed_ 

NICE REFUND! 

.S3,267 

FEDERAL 
PUBLIC

57 

(GX342 (Complaint Counsel) ¶ 114; GX173 (Complaint Counsel); see also Shiller 

(Complaint Counsel) Tr. 189-190). 

237. GX551 is a Non-Video Display Advertisement placed by Intuit for TY 2021. A 

screenshot of GX551 is pictured below. 

(GX551 (Intuit)). 

About the Ad 

& TurboTax 

Sponacr-eo 

0:4C$27022CS71954 

Sof6 

Get your taxes done fVll Pay$0 to file Fed and State with Turtx>Tn 

Si1l)le tax re-turns only. 

1PP"'..JPPI..E.ocr.t 

Amefica

were 

---prepared 

·s # 1 Tax 

last~ 

Prep Pnwiderwith Turbo over40 

Tax. Why 

llllion 

Wait? 

retu

With 

ms 

... --

About the Page 

More info 

TurboTa.x 

@<u"'°'3x 

7 57 ,244 likes • Product/Service 

Cturbotlx 

22.923 followers 

See Ads 

We help you get yoor taxesdoMright. JOO us f«tax t¥J<S & ()f'NS that wil help 

you keep more of your rooney. Need hefp? We're here Monday-Friday 5e~ Spm 

(PSl) 
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238. GX552 is a Non-Video Display Advertisement placed by Intuit for TY 2021. A 

screenshot of GX552 is pictured below. 

(GX552 (Intuit)). 

239. GX553 is a Non-Video Display Advertisement placed by Intuit for TY 2021. A 

screenshot of GX553 is pictured below. 

(GX553 (Intuit)). 

240. GX554 is a Non-Video Display Advertisement placed by Intuit for TY 2021. A 

screenshot of GX554 is pictured below. 

(GX554 (Intuit)). 

~ f~~botax. Free Edition 

Simple tax returns only. 

Maximum refund, guaranteed. 
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59 

241. GX555 is a Non-Video Display Advertisement placed by Intuit for TY 2021. 

A screenshot of GX555 is pictured below. 

(GX555 (Intuit)). 

242. GX556 is a Non-Video Display Advertisement placed by Intuit for TY 2021. 

A screenshot of GX556 is pictured below. 

(GX556 (Intuit)). 

I:,;. intuit 

t;;,1 turbotax. Free Edition 

NICE REFUND! 

s2,766 

HD!RAL. 

Fed State to File 

Simple tax returns only. 

Maximum refund, 

guaranteed. 
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60 

243. GX566 is a Non-Video Display Advertisement placed by Intuit for TY 2021. 

A screenshot of GX566 is pictured below. 

(GX566 (Intuit)). 

244. GX574 is a Non-Video Display Advertisement placed by Intuit for TY 2021. 

A screenshot of GX574 is pictured below. 

(GX574 (Intuit)). 

1nTu1T ~ turbotax. Free Edition 

Simple tax returns only. 

File for 5 0 

Maximum refund, guaranteed. 

NICE REFUND! 

$2,766 

FEDERAL 

Have an expert do 

your taxes, FREE. 

Only from Turbo Tax. 

Simple tax returns only. 

Must file by 2/15. 

l f~~botax. 
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61 

245. GX575 is a Non-Video Display Advertisement placed by Intuit for TY 2021. 

A screenshot of GX575 is pictured below. 

(GX575 (Intuit)). 

246. GX580 is a Non-Video Display Advertisement placed by Intuit for TY 2021. 

A screenshot of GX580 is pictured below. 

(GX580 (Intuit)). 

~ intuit 

~ turbotax. 

Have an expert do 

your taxes, FREE. 

New from Turbo Tax. 

Simple tax returns only. 

Must file by 2/15. 
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62 

247. GX585 is a Non-Video Display Advertisement placed by Intuit for TY 2021. 

A screenshot of GX585 is pictured below. 

(GX585 (Intuit)). 

248. GX586 is a Non-Video Display Advertisement placed by Intuit for TY 2021. 

A screenshot of GX586 is pictured below. 

(GX586 (Intuit)). 

249. GX587 is a Non-Video Display Advertisement placed by Intuit for TY 2021. 

A screenshot of GX587 is pictured below. 

(GX587 (Intuit)). 

HUllock• 

Do your '0 •o own taJtes 

Do your taxes 

with expert help •o '39.99 

A ta.x expert doet 

taxes for you '0 '80 

•~~ on puba/$hed p,ices a1 hrblock.com as of 1M022 
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63 

250. GX588 is a Non-Video Display Advertisement placed by Intuit for TY 2021. 

A screenshot of GX588 is pictured below. 

(GX588 (Intuit)). 

251. GX596 is a Non-Video Display Advertisement placed by Intuit for TY 2021. 

A screenshot of GX596 is pictured below. 

(GX596 (Intuit)). 

252. On March 30, 2022, the following two TurboTax advertisements were displayed on the 

Apple News application: 

NEW! FIie FREE. even '-Afhen an expert 

du~!:> your lox~::. 

Simple t ax r eturns onl y. 

Must fil e by 3 / 31-

§§f-\§--
PUBLIC

64 

(GX342 (Complaint Counsel) ¶ 161; GX189 (Complaint Counsel); GX189-A (Complaint 

Counsel); see also Shiller (Complaint Counsel) Tr. 193-196). 

253. The TurboTax advertisements marked GX189 and GX189-A appeared repeatedly on the 

Apple News application between March 20, 2022 and April 18, 2022. (GX342 

(Complaint Counsel) ¶ 162). 

254. On April 7, 2022, the following TurboTax advertisement was displayed on Reddit: 

< < 

...... ~ turbotax. Fre-eEdll.ion 

Simple tax ,cturns only. 

Maximum refund. guaranteed. 

➔ 
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65 

(GX342 (Complaint Counsel) ¶ 169; GX196 (Complaint Counsel); GX197 (Complaint 

Counsel)). 

255. On April 8, 2022, the following TurboTax advertisement was displayed on Reddit: 

u/Tu.-boTaxOfficia .. Promoted 

File FREE with TurboTax: $0 Fed. $0 State. 

$0 to F ile. Simple tax returns only. 

t u rbota x .1 ntu 1t . com Download 

{} Vote {} 0 0 l2J Share 

~~urboTax.Officia. • Promoted 

$0 Fed. $0 State. $0 to File . TurboTax is 

FREE for simple tax returns only. 

turbotax.in tuiLcom OownJoad 

0 0 -.!.J Share ro 
PUBLIC

66 

 (GX342 (Complaint Counsel) ¶ 170; GX198 (Complaint Counsel)).

Rte FREE with TurboTax: $0 Fed. $0 Stato. 

$0 to File. Simple tax returns only. 

0 0 J_, Share 

u/TurboTaxOfficiaJ • Promoted 

$0 Fed. $0 State. $0 to File. TurboTax is 

FREE for simple tax returns only . 

.,.,,ntult 

~ turbotax. 

turbotax.intuit.com Download 

◊ Vote ,C, 0 0 ,!; Share 
PUBLIC

67 

256. On April 14, 2022, the following TurboTax advertisement appeared on the webpage of 

the Milwaukee Journal Sentinel, jsonline.com/travel/: 

(GX342 (Complaint Counsel) ¶ 171; GX199 (Complaint Counsel); see also Shiller 

(Complaint Counsel) Tr. 196-197). 

b. Video Display Advertisements for TY 2020 and TY 2021 

257. In most of the Video Display Advertisements, the words “simple returns only,” “simple 

U.S. returns only,” or “simple tax returns” are much less prominent than the language or 

images of “free” or “$0.” (GX509 (Intuit); GX513 (Intuit); GX520 (Intuit); GX523

(Intuit); GX527 (Intuit); GX529 (Intuit); GX561 (Intuit); GX581 (Intuit); GX582 (Intuit);

GX590 (Intuit); GX592 (Intuit); GX593 (Intuit); GX599 (Intuit)).

i. Advertisements without Voice-Over 

258. F. 259-269 represent Video Display Advertisements placed by Intuit in TY 2020 and TY 

2021 that do not have any accompanying voice-over. Each advertisement has a moving 

display. The advertisements vary in duration, ranging from 6 to 10 seconds. 

f- C i /sonr,uom,1r,MI/ 

SUBSCRIB! NOW 

t 11or6~S-Now. milwaukee journal sentinel SUBSCRIB! NOW Stlor&IIO!lhs.S-Now. 

N11un Sports hek• rn Bu11n= Comm.,niticu; USATODAV Ob,tu.ines E Edrt,on ~b 0 Q. 46"f t>--- ~bo• Mgnln v 

P .. psArt Show celebntH artwork in a 

marshmallow medium 

DfTDl'TAINMDIT ,4r~8.1012 

Ice Ag• TUii endpoint In Sturgeon Bay to 

move, but say Within PoUWl.toml Sb!:• 

Put 

DOOll:COUNTY ~r\17, 2012 
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259. GX509 is a Video Display Advertisement placed by Intuit for TY 2020. The neon words 

repeatedly flash the word “free,” creating an emphasis on the word. A screenshot from 

GX509 is pictured below. 

(GX509 (Intuit)). 

260. GX520 is a Video Display Advertisement placed by Intuit for TY 2020. A screenshot 

from GX520 is pictured below. 

(GX520 (Intuit)). 

261. GX522 is a Video Display Advertisement placed by Intuit for TY 2020. Screenshots from 

GX522 are pictured below. 

onTU<T ✓ turbotax. Fr"o Edition 

FREE 

--guaranteed ---

so so so 

Fed State To File 

Simple tax returns only 
PUBLIC

69 

 (GX522 (Intuit)). 

262. GX523 is a Video Display Advertisement placed by Intuit for TY 2020. The word 

“FREE” moves about the screen, creating an emphasis on the word. A screenshot from 

GX523 is pictured below. 

(GX523 (Intuit)). 

263. GX524 is a Video Display Advertisement placed by Intuit for TY 2020. A screenshot 

from GX524 is pictured below. 

mtu1t 

✓ turbotax~ 

Basic 

Free Fed & State, PLUS 

·l , FREE EXPERT REVIEW 

, ~ j 

100%FREE 

Simple tax returns on ly 

""" 

Must 

File by 

2/15 
PUBLIC

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 (GX524 (Intuit)). 

264. GX539 is a Video Display Advertisement placed by Intuit for TY 2020. The 

advertisement depicts a dancing W-2 form, and then displays the words “File your taxes 

FREE,” followed by a display of the words “Plus, get a FREE final expert review.” This 

advertisement does not reference a TurboTax sub-brand such as Free Edition. The 

concluding screenshot from GX539 is pictured below. 

(GX539 (Intuit)).

mtu,t ~ ~ • turbotax~ Basic 

File your Fed & State 

taxes for FREE. 

Simple tax returns only. 

~l!~e~.~!lyrs 8 ~ ---111 
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265. GX545 is a Video Display Advertisement placed by Intuit for TY 2020. Screenshots from 

GX545 are pictured below.

(GX545 (Intuit)).

266. GX557 is a Video Display Advertisement placed by Intuit for TY 2021. A screenshot 

from GX557 is pictured below. 

(GX557 (Intuit)). 

""'' & turbotax. Free Edition 

NAX REFUND. GUARANTEED. 
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72

267. GX561 is a Video Display Advertisement placed by Intuit for TY 2021. A screenshot 

from GX561 is pictured below.

(GX561 (Intuit)).

268. GX562 is a Video Display Advertisement placed by Intuit for TY 2021. A screenshot 

from GX562 is pictured below.

(GX562 (Intuit)). 
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269. GX599 is a Video Display Advertisement placed by Intuit for TY 2021. This 

advertisement does not reference a TurboTax sub-brand such as Free Edition. 

A screenshot from GX599 is pictured below.

(GX599 (Intuit)). 

ii. Advertisements with Voice-Over

270. F. 273-289 represent Video Display Advertisements placed by Intuit in TY 2020 and TY 

2021 that have an accompanying voice-over. Each of these advertisements has a moving 

display. The advertisements vary in duration, ranging from 6 to 10 seconds. 

271. Some of the Video Display Advertisements begin with a voice-over stating, “Simple tax 

returns only. File your federal and state taxes for free. Guaranteed.” In some of these 

advertisements, the phrase “File your federal and state taxes for zero dollars” is used 

instead of “File your federal and state taxes for free.” (GX510 (Intuit); GX511 (Intuit); 

GX512 (Intuit); GX513 (Intuit); GX514 (Intuit); GX515 (Intuit); GX516 (Intuit); GX517 

(Intuit); GX518 (Intuit); GX519 (Intuit); GX526 (Intuit); see also Baburek (Complaint 

Counsel) Tr. 334-336 (referencing GXD002 (Complaint Counsel) at 8-17, referencing 

GX510 (Intuit); GX511 (Intuit); GX512 (Intuit); GX513 (Intuit); GX514 (Intuit); GX515 

(Intuit); GX516 (Intuit); GX517 (Intuit); GX518 (Intuit); GX519 (Intuit)).

272. Some of the Video Display Advertisements include a voice-over stating, “simple tax 

returns only” at or near the end. (GX581 (Intuit); GX582 (Intuit); GX590 (Intuit); GX592 
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(Intuit); GX593 (Intuit)). The audio in GX597 does not include the words “simple tax 

returns only.” (GX597 (Intuit)).

273. GX510 is a Video Display Advertisement placed by Intuit for TY 2020. A screenshot 

from GX510 is pictured below.

(GX510 (Intuit)). 

274. GX511 is a Video Display Advertisement placed by Intuit for TY 2020. A screenshot 

from GX511 is pictured below.

(GX511 (Intuit)). 
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275. GX512 is a Video Display Advertisement placed by Intuit for TY 2020. A screenshot 

from GX512 is pictured below.

(GX512 (Intuit)). 

276. GX513 is a Video Display Advertisement placed by Intuit for TY 2020. Screenshots from 

GX513 are pictured below.
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(GX513 (Intuit)). 
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277. GX514 is a Video Display Advertisement placed by Intuit for TY 2020. A screenshot 

from GX514 is pictured below.

(GX514 (Intuit)). 

278. GX515 is a Video Display Advertisement placed by Intuit for TY 2020. A screenshot 

from GX515 is pictured below.

(GX515 (Intuit)). 
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279. GX516 is a Video Display Advertisement placed by Intuit for TY 2020. A screenshot 

from GX516 is pictured below.

(GX516 (Intuit)). 

280. GX517 is a Video Display Advertisement placed by Intuit for TY 2020. A screenshot 

from GX517 is pictured below.
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(GX517 (Intuit)). 

281. GX518 is a Video Display Advertisement placed by Intuit for TY 2020. A screenshot 

from GX518 is pictured below.

(GX518 (Intuit)). 
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282. GX519 is a Video Display Advertisement placed by Intuit for TY 2020. A screenshot 

from GX519 is pictured below. 

(GX519 (Intuit)). 

283. GX526 is a Video Display Advertisement placed by Intuit for TY 2020. A screenshot 

from GX526 is pictured below. 

(GX526 (Intuit)). 

mtu1t 

✓ turbotaxEEI 

Basic 

Free Fed & State, PLUS 

(i\ ~ FREE EXPERT REVIEW 

.,,~ 

100%FREE 

Simple tax returns only 

Must 

File by 

2/15 
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284. GX581 is a Video Display Advertisement placed by Intuit for TY 2021. A voice-over 

states: “File your taxes free, your way. Do it yourself free. Get unlimited advice from tax 

experts free or have an expert do it all for you 100% free only from turbo tax. Simple tax 

returns only. Must file by February 15th.” A screenshot from GX581 is pictured below. 

(GX581 (Intuit)). 

285. GX582 is a Video Display Advertisement placed by Intuit for TY 2021. The voice-over 

states: “Now file your taxes free your way. Do it yourself, file with unlimited help, or 

have an expert do it all for you. Pay zero to file only from Turbo Tax. Simple tax returns 

only. Must file by February 15th.” A screenshot from GX582 is pictured below. 

(GX582 (Intuit)). 

O f~~botax. 

NEW! File FREE, 

even w hen 

an expert does 

your t axes 

Simple tax returns only. 

Must file by 2/15. 

$ 
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286. GX590 is a Video Display Advertisement placed by Intuit for TY 2021. The spoken 

words are: “File your taxes free your way. Do it yourself free. Get unlimited advice from 

tax experts free or have an expert do it all for you. 100% free. Only from Turbo Tax. 

Simple tax returns only. Must file by March 31st.” A screenshot from GX590 is pictured 

below. 

(GX590 (Intuit)). 

287. GX592 is a Video Display Advertisement placed by Intuit for TY 2021. The words 

spoken in the voice-over in GX592 are materially the same as those in GX590. 

A screenshot from GX592 is pictured below. 

(GX592 (Intuit)). 

NEW! Three ways 

to file FREE 

Simple tax returns only. 

Must file by 3/31. 

Doi< 

,..,... An expert 

files for you e)lfMfthelp 

--

NEW! File FREE, even when 

an expert does your taxes 

Simple tax returns only. 

Must file by 3/31. 

$ 
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288. GX593 is a Video Display Advertisement placed by Intuit for TY 2021. The words 

spoken in the voice-over in GX593 are materially the same as those in GX590. 

A screenshot from GX593 is pictured below. 

(GX593 (Intuit)). 

289. GX597 is a Video Display Advertisement placed by Intuit for TY 2021. The voice-over 

states: “How I file my taxes free, my way. I get free unlimited advice from tax experts, or 

I hand it off and they do it all for me. File fed and state 100 percent free, even when an 

expert does your taxes.” The words “simple tax returns only” are not spoken. 

A screenshot from GX597 is pictured below. 

(GX597 (Intuit)). 

c. Online Video Advertisements for TY 2020 and TY 2021 

290. Consumers who clicked on the Online Video Advertisements at GX601-GX608, GX613-

GX616, GX620-GX626, GX628, and GX629 were immediately directed to a webpage on 

the TurboTax website, https://turbotax.intuit.com/. (JX1 (Joint Stipulations of Law and 

Fact) ¶ 59). 

lfl1l ,n+utt 

~ turbotax. 

NEW! Three ways to file FREE 

Simple tax returns only. Must file by 3/31. 

Doit 

yourself 

An expert 

files for you File with 

e xpert help 
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i. Echo

291. RX1124 (also admitted into the record as GX609) is a 15-second YouTube video 

advertisement placed by Intuit for TY 2020 that depicts a woman hiking. When she 

reaches the top, she yells, “free” and listens while the word “free” echoes back (the 

“Echo” advertisement). (RX1124 (Intuit)).

292. At approximately the 0:10 mark of the Echo advertisement, the following screen appears: 

The duration of the foregoing screen is approximately 2 seconds. (RX1124 (Intuit) at 

0:10-0:12). 

293. At approximately the 0:13 mark of the Echo advertisement, the following screen appears, 

while a voice-over states: “That’s right. turbo tax free edition is free. Free, free, free, 

free.”

The duration of the foregoing screen is approximately 2 seconds. (RX1124 (Intuit) at 

0:13-0:15). 

✓ 

• • lnTUIT 

turbotax® 

Free Edition 

Free, free free free. 

Turbo Tax Free Edition is for simple U.S. returns only. See if you qualify at turbotax.com . Offer subject to change 
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294. RX1404 (also admitted into the record as GX605) is a six-second version of the Echo

video advertisement placed on YouTube by Intuit for TY 2020. (RX1404 (Intuit)). 

Although significantly shorter, the action, language, and disclosures in this advertisement 

are otherwise materially the same as RX1124. (F. 291-293). 

ii. Auctioneer

295. GX200 is a 30-second YouTube video advertisement placed by Intuit as it appeared on 

March 28, 2022 (the “Auctioneer YouTube advertisement”). (Shiller (Complaint 

Counsel) Tr. 165-167; GX200 (Complaint Counsel); GX342 (Complaint Counsel) ¶ 129)

The action, language, and disclosures in this video advertisement are materially the same 

as the Auctioneer television advertisement identified as GX202. (Compare F. 177-179 

with F. 296-299).

296. The Auctioneer YouTube advertisement depicts a cattle auction in which the only word 

spoken by the auctioneer is the word “free.” The word “free” is repeated many times, and 

the auction culminates with the auctioneer announcing “free” as the winning bid. (GX200 

(Complaint Counsel)). 

297. The following is a transcription of the words spoken in the Auctioneer YouTube 

advertisement: 

AUCTIONEER: And free, and free, and free, and free, and free. Now a bidder 

and free! Now give me another bidder and free and a free here and a free free 

free a free free free. Now a bidder and free! Now give me another bidder and 

free, and a free free free. And free, and free, and free, and free free and free. 

Here we go at free, free, free, and freeeeeeeeeeee. Free! 

VOICE-OVER: That’s right. TurboTax Free Edition is free. See details at 

TurboTax.com.

(GX342 (Complaint Counsel) ¶ 132; GX200 (Complaint Counsel); see also Shiller 

(Complaint Counsel) Tr. 166-167).

298. At approximately the 0:26 mark of the Auctioneer YouTube advertisement, the following 

screen is shown:
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The duration of the foregoing screen is approximately 1 second. (GX200 (Complaint 

Counsel) at 0:26-0:27). 

299. At approximately the 0:28 mark of the Auctioneer YouTube advertisement, the following 

screen is shown: 

The duration of the foregoing screen is approximately 2 seconds. (GX200 (Complaint 

Counsel) at 0:28-0:30). 

300. As of March 28, 2022, the Auctioneer YouTube advertisement (GX200) had over 5.6 

million views on YouTube. (GX342 (Complaint Counsel) ¶ 129; see also Shiller 

(Complaint Counsel) Tr. 272). 

• • lnTUIT 

✓ turbotax. Free Edition 

Turbo Tax Free Edition is for simple US returns only See if you qua~ty at turbotax com. Otter sub,ect to change 
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301. RX1415 (also admitted into the record as GX623) is a video recording of a 30-second 

advertisement placed by Intuit. (RX1415 (Intuit)). The action, language, and disclosures 

in this video advertisement are materially the same as the Auctioneer advertisement 

identified as GX200. (F. 295-299).

302. RX1405 (also admitted into the record as GX606) is a 30-second YouTube video

advertisement placed by Intuit for TY 2020. (RX1405 (Intuit)). The action, language, and 

disclosures in this video advertisement are materially the same as GX200. (F. 295-299). 

303. RX1407 (also admitted into the record as GX610) is a six-second version of the 

Auctioneer YouTube advertisement placed by Intuit for TY 2020 and TY 2021. (RX1407

(Intuit)). Although significantly shorter, the action, language, and disclosures in this 

video advertisement are otherwise materially the same as GX200. (F. 295-299). 

304. RX1408 (also admitted into the record as GX611) is a 15-second version of the 

Auctioneer YouTube advertisement placed by Intuit for TY 2020. (RX1408 (Intuit)). The 

action, language, and disclosures in this video advertisement are materially the same as

GX200. (F. 295-299).

305. RX1119 (also admitted into the record as GX621) is a 15-second version of the 

Auctioneer YouTube advertisement placed by Intuit for TY 2021. (RX1119 (Intuit)). The 

action, language, and disclosures in this video advertisement are materially the same as

GX200. (F. 295-299).

iii. Dance Workout

306. RX1122 (also admitted into the record as GX608) is a 15-second YouTube video

advertisement placed by Intuit for TY 2020. (RX1122 (Intuit)). The action, language, and 

disclosures in this video advertisement are materially the same as the “Dance Workout” 

television advertisement identified as GX208. (F. 182-185). 

307. GX206 is a 30-second YouTube video advertisement placed by Intuit, as it appeared on 

March 28, 2022. (Shiller (Complaint Counsel) Tr. 169-170; GX206 (Complaint Counsel); 

GX342 (Complaint Counsel) ¶ 135). The action, language, and disclosures in this video 

advertisement are materially the same as GX208. (F. 182-185). 

308. As of March 28, 2022, the 30-second version of the Dance Workout YouTube video 

advertisement (GX206) had been viewed over 11.3 million times on YouTube. (GX206 

(Complaint Counsel); GX342 (Complaint Counsel) ¶ 135; see also Shiller (Complaint 

Counsel) Tr. 170, 272).

309. RX1409 (also admitted into the record as GX612) is a six-second YouTube video

advertisement placed by Intuit for TY 2020. (RX1409 (Intuit)). Although significantly 

shorter, the action, language, and disclosures in this video advertisement are otherwise 

materially the same as GX208. (F. 182-185). 
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310. RX1412 (also admitted into the record as GX628) is a 30-second YouTube video

advertisement placed by Intuit for TY 2021. (RX1412 (Intuit)). The action, language, and 

disclosures in this video advertisement are materially the same as GX208. (F. 182-185).

311. RX1414 (also admitted into the record as GX620) is a 30-second video advertisement 

placed by Intuit for TY 2021. (RX1414 (Intuit)). The action, language, and disclosures in 

this video advertisement are materially the same as GX208. (F. 182-185). 

312. RX1417 (also admitted into the record as GX625) is a 15-second video advertisement 

placed by Intuit for TY 2021. (RX1417 (Intuit)). The action, language, and disclosures in 

this video advertisement are materially the same as GX208. (F. 182-185).

313. GX174-A is a six-second video advertisement placed by Intuit, which was active on 

Facebook on February 11, 2021. (GX174-A (Complaint Counsel); GX342 (Complaint 

Counsel) ¶ 116). Although significantly shorter, the action, language, and disclosures in 

this video advertisement are otherwise materially the same as GX208. (F. 182-185).

314. GX175-A is a 30-second video advertisement placed by Intuit that was active on TikTok 

on January 11, 2021. (GX175-A (Complaint Counsel); GX342 (Complaint Counsel) 

¶ 117). The action, language, and disclosures in this video advertisement are materially 

the same as GX208. (F. 182-185).

iv. Dog Show

315. RX1120 (GX615) is a 15-second YouTube video advertisement placed by Intuit for 

TY 2020. (RX1120 (Intuit)). The action, language, and disclosures in this video 

advertisement are materially the same as the “Dog Show” television advertisement 

identified as GX204. (F. 188-192). 

316. RX1410 (GX613) is a six-second YouTube video advertisement placed by Intuit for 

TY 2020. (RX1410 (Intuit)). Although significantly shorter, the action, language, and 

disclosures in this video advertisement are otherwise materially the same as GX204. 

(F. 188-192). 

v. Teen Love

317. RX1123 (GX629) is a YouTube video advertisement placed by Intuit for TY 2021, 

depicting a teenage boy and teenage girl appearing to reconcile their relationship while 

communicating through only the word “free.” (RX1123 (Intuit)). At approximately the 

0:12 mark, the following screen appears, while a voice-over states “That’s right. turbo tax

free edition is free. Free, free, free, free”:
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The duration of the foregoing screen is approximately 3 seconds. (RX1123 (Intuit) at 

0:12-0:15). 

5. Email Marketing

a. Email Details

318. FTC Investigator Diana Shiller created an email address to receive email advertisements 

from TurboTax for purposes of the investigation of Intuit. GX171 and GX172 are partial 

redacted copies of email advertisements that Shiller received from TurboTax on March 9, 

2020 and July 14, 2020, respectively. GX181 is a partial redacted copy of an email 

advertisement Shiller received from TurboTax on January 5, 2021. GX480 is a partial 

redacted copy of an email advertisement Shiller received from TurboTax on February 11, 

2022. (Shiller (Complaint Counsel) Tr. 197-200, 257-258 (Shiller acknowledging that the 

exhibits were not the full emails she received, but were partial and redacted); GX342 

(Complaint Counsel) ¶¶ 102, 103, 122, 173; GX171 (Complaint Counsel); GX172 

(Complaint Counsel); GX181 (Complaint Counsel); GX480 (Complaint Counsel)).

319. GX171 is copied below:
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 (GX171 (Complaint Counsel); GX342 (Complaint Counsel) ¶ 102). 

320. GX172 is copied below: 

••• Please Sign In: User ID and Easy Refund Inside 

1 message 

Turbo Tax <TurlJoTax@e.turtJOtax.intuit.com> 

Reply-To: TurboTax <taxemail@e.turbotax.intuit.oom> 

To: 

Mon, Mar 9, 2020 at 11:24 AM 

lll, •nhot 

~ turbotax. 

GETTHAT GREEN FOR ST. PATTY'S DAY 

- guaranteed - Fed State To File 

Sign in with your User ID: Qi 

Spring is in the air and refunds are on their way 

Oo your taxes for FREE! The IRS is sending refunds out every day - the sooner 

you file, the faster you'll get yours. Get started today! 

Sign in now 

• 
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 (GX172 (Complaint Counsel); GX342 (Complaint Counsel) ¶ 103). 

321. GX181 is copied below: 

Deadline Reminder: Taxes are Due Tomorrow! 

1 message 

Turbo Tax <TurboTax@e.turt>otax.intuit.com> ~iQz-To: Turbo Tax <taxemail@e.turbotax.intuit.com> 

Tue, Jul 14, 2020 at 11:09 AM 

~ t~~botax. 

0 TAXES ARE DUE JULY 1 S! 

FREE 

-- guaranteed -

$0 Fed. $0 State. $0 To File. 

Turbo Tax Free Edit,on, s1<np~tax returns only• 

I Sign 1n 

Sign in with your User ID: Iii -

Your taxes are due July 15. File today. 

Give Turbo Tax aoother shot - it's never been easier to file your taxes 

for free. Import your W-2, answer simple questions about your life and 

we'll get you your max refund - guaranteed! File for SO. 

Get a jump-start with last 

year's tax return 
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(GX181 (Complaint Counsel); GX342 (Complaint Counsel) ¶ 122). 

322. GX480 is copied below: 

*** (Please Sign in to Your Account) E-File With Direct Deposit for 

Your Fastest Refund 

Received: Friday, January 15, 2021 7 :26 PM 

From: Turbo Tax Turbo Tax@em1.turbotax.intuit.com 

To: 

~ turbotax 

You're well on your way 

S,9'1 b.& n wilh -r:- J~1 lO aid pick ~lffle"eyou ldolf 

Turbo Tax is now accepting e-file 

There's no taster way10 get you- reb'd th.ln llhen )OJ e-file today 

and choose drect deposi. Lefs fi1ish up for FREE. 

Signbac::t in> 
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93 

 (GX480 (Complaint Counsel); GX342 (Complaint Counsel) ¶ 173).

323. GX477 is a complete copy of an email advertisement received by a consumer from 

TurboTax, with only the consumer’s identifying information redacted, which was 

received by Shiller on April 18, 2022 from FTC staff in connection with the 

investigation. (GX342 (Complaint Counsel) ¶ 172; Shiller (Complaint Counsel) Tr. 252-

253, 257-258). GX477 is copied below: 

I (Message for You) Please Sign in to Transfer Last Year's Tax Information 

From : Tu rbo Tax <Turbolax@em l .turbotax.intuit.oom> 

To: 

Dat e: Friday, Febru ary 11th. 20 22 at 7:00 PM 

~ mtlrl 

w turbotax . 

Keep more of your 

hard-earned money 

Get your taxes done rig ht 

again t h is year - for FREE! 

File today! 

TurboTax. l=ree Edition, for simple tax returns only* 

<TART ----- ,p ====~ 'Nl<H 

You're well on your way 

Sign back in with yo~r User ID and pick up where vou left off. 

-

S,gn in 
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~ .,tu,t 

~ turbotax. s,gnm 

Q TAXES DUE BEFORE Ml,DNIGHTI 

Sign in w,th your User ID. 
PUBLIC

95 

(GX477 (Complaint Counsel); GX342 (Complaint Counsel) ¶ 172).

324. An asterisk in an email advertisement indicates that there is additional information in the 

email below the asterisk. (Shiller (Complaint Counsel) Tr. 253). 

325. GX171, GX172, GX181, and GX480 show an asterisk next to the phrase “simple returns 

only,” but these emails were knowingly submitted by Complaint Counsel in partial form 

mtu,t 

legal 

Privacy 

Secorily 

6 Chedt before you clicld Tt.Wbo Tax "'II never ask. you for personal irlonnalion in 

an email Wien you dick on a Inc. the address shot.Id always conoo ... l'ltl.it.com''. 

l!";h1rbotax ()quidcbooks 0 mint G,crt<1it1o:atma (, malkhimp 

·A SU11)le tax retLm is Form 1040 onty. Situations OO¥ered in 

Tl.rtloTaxFree Ediiion, TurboTax liYe Basic. and TurboTax Live F• Service Basic: 

. W.2~ 

· Unified ritetest and dividend income reported on a 10Q9.tNT 

"''~ 

· Claining the standard dedu::tion 

Eamed Income Tax 0d (EiC) 

·Owdiaxads 

· Stt..lent loan lnle<esl de<l.ctoo 

Maine andMassachusetts2021 taxes we due by Apri 19. 2022. 

Prices ~et, deterriled at iime of print Of e-file. T enns. oonditions. feattns.. availability. pricing. fees.. service and 

s~ options wbject lo c:bal"Ge wthotJt notice. 

Rebid amol#'lts shotiWI are for example only. Y oor refund is 

based onyo,.x m situaticn 

Click here to see Tl.Wbo Tax product ~arantees.. disclaimers and 

OChef" Ull)Otiani information. 

~ t1rrA~g,nr WI wi ~ , :.dclress 

Oi:lyo,, -w......'llil arnal in•ll'Of? Findcxitv,kry 

tf'MIIM,-, ~ ~tl'g ~ In errr,-YUIOM • .,...,,_ ____ c,go.,M.Ngo9:4122 .... h; . .&II ngllti tfi.91Vtld, I rademn. 

OiGblE:rO:wrmri:atiorG. 2&)(1 E. ~ Center P'tJOe 

TOC'3Cft Az::!5703 

:l(GW)3A 
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only. (GX342 (Complaint Counsel) ¶¶ 102, 103, 122, 173; Shiller (Complaint Counsel) 

Tr. 257-258). 

326. GX477 shows an asterisk next to the words “simple tax returns only.” GX477 also shows 

the words associated with the asterisk describing the situations covered in TurboTax Free 

Edition, TurboTax Live Basic, and TurboTax Live Full Service Basic. (F. 323).

327. It is inferred that the complete versions of the emails that were submitted in partial form 

as GX171, GX172, GX181, and GX480 would have contained the same or substantially 

the same disclosures as those shown in GX477. (F. 323).

328. GX371 is a complete TurboTax email advertisement dated April 11, 2018. GX371 is 

copied below: 

M Gmail Rohl! Banwl 

FIie your taxes for $0 with Turbo Tax Free Edition 

1 message 

Chase <Cll8seCe Chase com> Wed, Aj)l 11, 2018 at 10 30 AM Ref(-To ;gm ChaSe-ccm" <Chase-HP2v400000162b5c2A.45c981d1c6e9666b528214Qe cnase com> 

To ■ -

FIie by the April 17th tax deadllne and save 

FILE YOUR SIMPLE 

FED RETURN FOR $0 

TlltlDTa r,_ ~ IOIOCl/lOIGt. 

'1_ tntu1t 

~ turbotax 

File Now 

PREPARE AND FILE YOUR TAXES 

with TulboT~. the #1 Bcsl•Sdl,ng Brand 

PAY $0 TO PREPARE AND FILE YOUR SIMPLE FEDERAL TAXES 

Wllh Turbo Tax Free Edotton (1040EZ/1040A retims) 

REACH YOUR SAVINGS GOALS FASTER AND EASIER 

whrn vnu ,._r,i,. Alll1 riilN1 tlrnMAI wu· n•furv1 
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(GX371 (Complaint Counsel)).

329. The following TurboTax promotional emails included various styles of “free” claims, 

some of which also included small print disclosures of “simple returns only” or 

“1040EZ/A,” asterisks, hyperlinks to additional information, or other disclosures at the 

end of the email:

GX373 (Schulte) (Feb. 6, 2017 email from TurboTax: “Your W-2 is ready!” 

“start the transfer and get your guaranteed biggest refund fast and FREE!” 

“File Free Today!” “AbsoluteZero®, 1040EZ/A, $0 Fed $0 State $0 To File”; 

asterisk at the end of email with a color contrasted apparent hyperlink, “*click 

here to see TurboTax product guarantees, disclaimers and other important 

information.”); 

GX374 (Schulte) (Dec. 10, 2017 email from TurboTax: “Get your biggest 

refund for free again this year[.] AbsoluteZero® GUARANTEED $0 Fed $0 

State $0 To File.” “Forms 1040EZ/1040A, limited time only”; asterisk at the 

end of email with a color contrasted apparent hyperlink, “*click here to see 

TurboTax product guarantees, disclaimers and other important information.”); 

GX377 (Schulte) (Dec. 9, 2018 email from TurboTax: “Welcome back to 

TurboTax. Get your biggest refund for free this year[.]” “FREE guaranteed - 

$0 Fed $0 State $0 To File,” with small print reference: “for simple tax 

returns”); 

GX381 (Schulte) (Feb. 10, 2019 email from TurboTax: “FREE guaranteed $0 

Fed $0 State $0 To File” and “File your simple tax returns for FREE Free, free 

free free FREE! You have everything you need to finish and file for free, free, 

free and yes __FREE!” “TurboTax Free Edition, for simple tax returns”); 

IMPORTANT INFORMATION 

Turbo Tax Free Edrt1on $0 federal (forms 1040EZ/1040A) offer ooly available with Turbo Tax 

Free Ed1llon, Slate filing charges apply. Turbo Tax onhne and mobtle pnang 1s based on your 

tax situation and vanes by product Actual pnces are detemuned at the lime of pnnt or e-file 

and are subject to change without noltce 

#1 Best~Selhng Brand. Based on aggregated sales data for all tax year 2016 Turbo Tax 

products 

Fastest tax refund with e-file and direct def)OSlt, tax refund bmes will vary 

Visrt httos //lurbotax 1ntu1lcom/lM!QyJguarantoos.1s12 for Turbo Tax product guarantees and 

other important infoonabon. Intuit, Turbo Tax and Turbo Tax Online, among others, are 

registered trademarks and/or serv1ce mar1<s of lnturt Inc in tho Unrted Slates and other 

countnes 
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GX383 (Schulte) (Jan. 17, 2020 email from TurboTax: “FREE Guaranteed $0 

Fed. $0 State. $0 to File.” “Simple tax returns only*”; asterisk at end stating: 

“*Prices ultimately determined at time of print or e‐file. Terms, conditions, 

features, availability, pricing, fees, service and support options subject to 

change without notice”; a color contrasted apparent hyperlink on last page 

stating, “click here to see TurboTax product guarantees, disclaimers and other 

important information”); 

GX386 (Adamson) (Jan 5, 2020 email from TurboTax: “FREE guaranteed $0 

Fed $0 State $0 To File” “TurboTax Free Edition, simple tax returns*”); and

GX388 (Adamson) (Dec. 9, 2016 email from TurboTax: “Get your biggest 

refund absolutely free.” “Join the millions who file for $0” “AbsoluteZero® 

1040EZ/A $0 Fed $0 State $0 To File”).

b. Summaries

330. TurboTax email advertisements, including those for TurboTax Free Edition, are sent only 

to individuals who had previously used TurboTax or had started their return in TurboTax 

but had yet to complete it. (Ryan (Intuit) Tr. 769; Shiller (Complaint Counsel) Tr. 256; 

see also RX1018 (Golder Expert Report) ¶ 160; CCRRFF ¶ 283).

331. Of the email advertisements described in this section II.B.5, most referred to “TurboTax 

Free Edition” or “AbsoluteZero®.” (GX171 (Complaint Counsel); GX172 (Complaint 

Counsel); GX181 (Complaint Counsel); GX373 (Complaint Counsel); GX374

(Complaint Counsel); GX381 (Complaint Counsel); GX386 (Complaint Counsel); 

GX388 (Complaint Counsel); GX477 (Complaint Counsel); GX480 (Complaint 

Counsel)).

332. Many of the email advertisement exhibits in the record did not reference a specific 

TurboTax product in the subject line or in the body of the email, and/or failed to clearly 

or conspicuously display the specific product name up front in the email. (GX171 

(Complaint Counsel); GX172 (Complaint Counsel); GX181 (Complaint Counsel); 

GX182 (Complaint Counsel); GX373 (Complaint Counsel); GX377 (Complaint 

Counsel); GX378 (Complaint Counsel); GX379 (Complaint Counsel); GX380

(Complaint Counsel); GX381 (Complaint Counsel); GX382 (Complaint Counsel); 

GX383 (Complaint Counsel); GX386 (Complaint Counsel); GX387 (Complaint 

Counsel); RX127 (Intuit); RX128 (Intuit); RX129 (Intuit); compare GX371 (Complaint 

Counsel)).

333. The email advertisement exhibits in the record that contained a reference to TurboTax 

AbsoluteZero® did so in a way that reinforced a claim that TurboTax was free. (See, e.g., 

GX374 (Complaint Counsel); GX388 (Complaint Counsel); GX389 (Complaint 

Counsel)). An example is GX388, pictured below:
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99

(GX388 (Complaint Counsel)).

334. The email advertisement exhibits in the record that contained language such as 

“1040EZ/A” or “simple tax returns only” or “for simple tax returns” presented the 

language in a significantly smaller and/or lighter, less noticeable font, in comparison to 

the words or images “free” or “$0.” (GX171 (Complaint Counsel); GX172 (Complaint 

Counsel); GX181 (Complaint Counsel); GX373 (Complaint Counsel); GX374 

(Complaint Counsel); GX377 (Complaint Counsel); GX381 (Complaint Counsel);

GX383 (Complaint Counsel); GX386 (Complaint Counsel); GX477 (Complaint 

Counsel); GX480 (Complaint Counsel)). See also, e.g., GX182 (Complaint Counsel); 

GX379 (Complaint Counsel); GX380 (Complaint Counsel); GX381 (Complaint

Counsel); GX382 (Complaint Counsel); GX386 (Complaint Counsel); GX387 

(Complaint Counsel); RX127 (Intuit); RX128 (Intuit); RX129 (Intuit). 

335. Some of the email advertisements described in this section II.B.5 included at the bottom 

of the email color-contrasted hyperlinks next to an asterisk, for example: “Click here to 

see TurboTax product guarantees, disclaimers and other important information.” (GX373 

(Complaint Counsel); GX374 (Complaint Counsel); GX383 (Complaint Counsel); 

GX477 (Complaint Counsel)).

336. Consumers who clicked on any hyperlink in GX181, GX373, GX374, GX377, GX381, 

GX383, GX386, GX477, and GX480 were immediately directed to a webpage on the 

TurboTax website, https://turbotax.intuit.com/. (JX1 (Joint Stipulations of Law and Fact) 

¶ 63).

6. Paid Search Advertising

337. Paid search is a form of digital marketing where search engines such as Google and Bing 

allow advertisers to show advertisements on their search engine results pages (“Paid 

Search Advertisements”). For paid search advertising, Intuit bids on a variety of
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100 

keywords in an auction marketplace, and if Intuit is the highest bidder, a TurboTax 

advertisement would appear at the top of the search results page when consumers search 

for those keywords. (Ryan (Intuit) Tr. 696-697; GX151 (Ison (Intuit) IHT) at 61-63; 

GX156 (Ryan (Intuit) IHT) at 31). Intuit submits components of the advertising copy that 

is to appear in the advertisement and writes and approves the headline and sub-headline 

text in the advertisement. (Ryan (Intuit) Tr. 697). 

338. Based on calculations of Respondent’s documents performed by Respondent’s expert 

witness Professor Peter Golder, in TY 2021, over 20% of consumers who arrived at the 

TurboTax website did so after clicking on paid search advertising. (RX1018 (Golder 

Expert Report) Figure 24 (citing RX825 (Intuit); RX52 (Intuit) at INTUIT-FTC-PART3-

000602247)). 

a. Paid Search Advertisements for TY 2019 

339. In TY 2019, the following Paid Search Advertisement appeared on the Google search 

results page in response to a search for “free file taxes ONLINE”: 

(GX342 (Complaint Counsel) ¶ 99; GX168 (Complaint Counsel); GX168-A (Complaint 

Counsel)). 

340. In TY 2019, the following Paid Search Advertisement appeared on the Google search

results page in response to a search for “free file”: 

7/10/2020 

Google 

free file taxes ONLINE - Google Search 

free file taxes ONLINE X 

0. All [B Videos @ News () Shopping I;;) Images : More Senings Tools 

About 229,000,000 results (0.70 seconds) 

Ad • turbotax.intuit.com/free/online ,. 

Turbo Tax® Official Site-100% Free Online Tax Filing 

SO Fed. SO State. SO To File. Plus, Turbo Tax® Also Guarantees Maximum Refund. Over 50 Million 

Americans Can File With Turbo Tax® Free Edition. Get Your Taxes Done Today. 

Turbo Tax® Premier 

For Investments & Rental Property 

Maximize Your Tax Deductions. 

Why Choose Turbo Tax? 

Ranked #1 In Tax Software 

100% Accurate Calculations. 
PUBLIC

101 

 (GX342 (Complaint Counsel) ¶ 101; GX170 (Complaint Counsel)). 

b. Paid Search Advertisements for TY 2020 

341. In TY 2020, the following Paid Search Advertisement appeared on the Google search 

results page in response to a search for “IRS taxes for free”:

(GX342 (Complaint Counsel) ¶ 121; GX180 (Complaint Counsel)). 

7/10/2020 

Google 

1/11/2021 

Google 

free file - Google Search 

free file X 

Q. All Ill) News G Videos O Shopping (;J Images : More Settings Tools 

About 7,320,000,000 results (0.47 seconds) 

Ad • turbotax.intuit.comtfree/efile • 

Turbo Tax® Free Tax Filing - E-ftle Your Taxes For Free 

Fast, Easy And 100% Free Tax Filing With Turbo Tax®. SO Federal. SO State. SO To File. Over 50 

Million Americans Can File With Turbo Tax® Free Edition. Get Your Taxes Done Today. 

Why Choose Turbo Tax? 

Ranked #1 In Tax Software 

100% Accurate Calculations. 

IRS taxes for free 

Free Refund Estimate 

Use Tax Calculator To Find Out How 

Much You'll Get Back This Year. 

IRS taxes for free - Google Search 

X 

Q. All Ill) News 0 Maps i;;J Images O Shopping : More Settings Tools 

About 58,700,000 results (0.57 seconds) 

Ad · turbotax.intuit.com/free/taxes • 

$0 Fed. $0 State. $0 to File. -Turbo Tax® Official Site 

Free For Simple Tax Returns Only. Find Even More For Complex Tax Situations w/ Turbo Tax®. 

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You File Simple Returns By 2/15. 
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c. Paid Search Advertisements for TY 2021 

342. In TY 2021, the following Paid Search Advertisements appeared on the Bing search 

results page in response to a search for “file my taxes for free”: 

3131122, 1:27 PM file ~ta,.,. r°" free- Search 

r Mkrosoft Bing file my laxes for I ree 

u IMAGES VJ)(OS •r.ws $110PP~G 

Also try: file tair:es with 'reeonline · tree filing tair:es onllne 

35,000,000 Rtsalta klytlme • Op•n links In new tab II) 

Turbo Tax® Free Edition I $0 Fed. $0 State. $0 To File. 

https://turbotax.lntuitcom/free/ taxes , 236K+ Focebook followe<s 

,.. Free For S~e Tu Returns On~ Wrth Turbo Ta</& Free Edttlon Get Your 

Fi~Now 

Max Refund Today. Free Online Tax Flin9w/ Ameriea's Leader In Taxts Gtt Your Mall: Refund 

With Turbo Tax 

You hove visited intuit.com 3 times in hst 7 days. 

File Online For Free 

furboTu Makes It l:asy lo Get Your 

Tam Oon, R~ht. Gft Slart,d ... 

Free Tax Refund Estimate 

Use Our Tu Calculator To Find Out 

How Much You~ Gel 8ack This Year 

Snap A Photo Of Your W-2 

seturclf Import and Aut,fil Oata. 

Do Your Tom Anytine,Anywhere. 

Turbo Tax• Self-Employed 

Turbotax• Login 

Login to your l urboTu account to 

start, cont.nue, or amend a tax .. 

File Your Taxes From Home 

Capture Your W-2 1n A Soop And 

Fih Your Tax Returns With Ease ... 

Fast And Easy Tax Filing 

You can Oo n1 8e t00\COnf.dent 

FIIIAQ Your Tutt This YeerWhen ... 

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Tax Services ... ,o 

TurboTax- lkllimlted, Real E,perts Help 

turbota~intuit.com · from $249.00 

LIi np«ts mti'l'li11 dedut:liont I crtdi11fOI' you 

Ta.Slayer. Sa,e time and rooney 

taJGlayer.com • from SO.DO 

GUlflntH!d M&idn"Lm Rt1und 

Q Sl&lf' ad(itl0f181 

E-file -Online Income Tax Preparalion & 

Eloctronle FltJ1g 

e.(lo,com · from $27.99 

IRS Rtfundt N Fu1" Pw-,iiki (,(.Ill RttJrn, 

end O rte1 Dlpo$11 

0 We ofler oonsumer 1a, pieparaiioa soft"'•re fo.~ 

Sl9nln 25 ? 
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(GX342 (Complaint Counsel) ¶¶ 163-165; GX190 (Complaint Counsel); GX191 

(Complaint Counsel); GX192 (Complaint Counsel)). 

4/7/22., 9:50AM file rnytaies for free - Search 

I Microsoft Bing file my taxes for free 

AU. IMAGES VIDEOS MAPS N&IS SHOPPING 

Also try: filetaxeswith freeonline • freefilingtaxes o nl111e 

414,300.()00 Results Anytime .. Open llnks in new lab a) 

Turbo Tax• Free Edit ion I $0 Fed. $0 State. $0 To File. 

https:/lturbotax.mtwlcom/free/taxes • 

Ad Free For Slnple Tax Returns Only Wrth Turbo Tax~ Free Edrhon_ Get Your Max Refund Today. 

Free Onlrle Tax Filing w/ Amenca's Leader In Taxes. Get Your Max Refund Wrth Turbo Tax 

Types : CO/ Oown k>ad Products. Moble App , Onl11e Products, Smal 8uS111ess Taxes 

Free Tax Ref und Estimate 

Use Our Tax Calculator To Find Out 

How Much You'I Get Back This Year. 

Snap A Photo Of Your W-2 

Seo.Jrely Import and Autofll Data 

Do Your Ta.xes Anytwne, Anywhere. 

Turbo Tax Live• 

Connect With A Lrve Tax Exptrl 

For Tax Advice And A Final Review. 

Turbo Tax• Premier 

For Filers Who Sold Investments. 

Effortlessly Import Your Tax Info 

See results onty from intuit_com 

PCMag Editors' Choice 

7-TimeWu,ner Of Best Tax Software 

Try Us To Find Out Why 

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Advance Child Tax Credit 

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Get Your Max Refund. Learn More. 

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You File With TurboTa.x~. File Now! 

! MORE 

E-file.com• Official Site 

e-fiie_com ... 

Free IRS E-Filing. E-File Yow- Tax Return 

Online wrth & file.com® - Start Here 

4118/22, 10:18 AM file mytIDes for free 

Microsoft Bing file my taxes for free 

AU. IMAGES VIDEOS MAPS NEWS SHOPPING 

Also try: file t axes with free onl ne • free filing taxes on line 

63,700,000 R .. sult• Op .. n bnk• In new teb ti[) 

TurboTax41 Free Edition I $0 Fed. $0 St at e. $0 To File. 

https://turbotax.intuit.com/ free/ taxes • 236K+ Facebook followers File Now 

Ad Free For Simple Tax Returns Only Wrth Turbo Tax® Free Edrt1on, Get Your 

Max Refund Today. Free Online Tax Filing w/ America's Leader In Taxes Get Your Max Refund 

With TurboTax 

File With Confidence· Audit Support Guarantee· Maximum Refund Guaranteed 

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Forms With TurboTax To Get Every ... 

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Free Tax Refund Estimate 

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M ORE 
PUBLIC

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343. In TY 2021, the following Paid Search Advertisements appeared on the Google search 

results page in response to a search for “file my taxes for free”:

(GX342 (Complaint Counsel) ¶¶ 166, 168; GX193 (Complaint Counsel); GX195 

(Complaint Counsel)). 

Y.31/22, 1215 PM file ffll/tales for free - Google Search 

Google file my taxes for free X 

0. All O Shopping !ill News 1B Videos (;) Maps ! More 

About 7,180,000,000 results (0.37 seconds) 

Ad · https:lnurbotax.intult.eom/lree 

Turbo Tax® Free Edition - $0 Fed. $0 State. $0 To File. 

Free For Simple Tax Returns Only With Turbo Ta"® Free Edition. Get Your Max Refund 

Today. Free Online Tax Filing wl America's Leader '1 Taxes. Get Your Max Refund With 

Turbo Ta"®. Audit Support Guarantee. Import Prior Year's Data. Free & Easy Filing. 

Free Tax Refund Estimate 

use Our Tax Calculator To Find Out How Much You'll Get Baek This Year. 

Snap A Photo Of Your W-2 

Securely Import and Autofill Data. Do Your Taxes Anytime, Anywhere. 

Turbo Tax® Self-Employed 

Review Industry-Specific Deductions Get Every Dollar You Deserve. 

Tools 

4/18/22, 9:42AM fi le my taxes for free - Google Search 

Google fi le my taxes for free X 

Q. All (JI Shopping ~ N .... vs 0 V'de.os 0 MApS , More. 

About J.000.000.000 resJlts (0.4~ seconds) 

Ad · hllμ;,.lllu11.iolax.i11luit.co111!fl~e/la.""'s 

Turbo Tax® Free Edition - SO Fed. SO State. $0 To File. 

Free For Si'nplc Tax Return~ Only With Turbo Tai® Free Edition. Gc1 Your ~bx Refund Today 

Free 011li11!l Tax Filill!l wi A111!lriai's Laad!lr 111 Taxes. Gal Yuur Max Refu11u With .. 

Free Tax Refund Estimate 

I.ISP. Cl1ir IAX C:Aif.lllA·or lo I Ind Out l-hwM11r.h Yo11'I (~I HAr.k I his YP.Ar 

Snap A Photo Of Your W-2 

Securely lmporl and Autofil Data Do Your Taxes t1n~1 me, AnyoM1crc. 

Tods 
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344. In TY 2021, the following Paid Search Advertisement appeared on the Google search 

results page in response to a search for “free tax filing”:

(GX342 (Complaint Counsel) ¶ 167; GX194 (Complaint Counsel)). 

d. Summaries

345. Consumers who clicked on Paid Search Advertisements for TurboTax Free Edition were 

taken directly to the TurboTax Free Edition page on TurboTax’s website, referred to as a 

“landing page.” (Rubin (Intuit) 1564-1565; Ryan (Intuit) Tr. 697; JX1 (Joint Stipulations 

of Law and Fact) ¶ 62).

346. Many of the Paid Search Advertisement exhibits in the record stated in the headline that 

the advertisement was for “TurboTax Free Edition.” (GX167 (Complaint Counsel); 

GX169 (Complaint Counsel); GX170 (Complaint Counsel); GX178 (Complaint 

Counsel); GX179 (Complaint Counsel); GX190 (Complaint Counsel); GX191 

(Complaint Counsel); GX192 (Complaint Counsel); GX193 (Complaint Counsel); 

GX194 (Complaint Counsel); GX195 (Complaint Counsel)).

347. Many of the Paid Search Advertisement exhibits in the record included the language “for 

simple tax returns only” in the text below the headline. (GX178 (Complaint Counsel); 

GX179 (Complaint Counsel); GX180 (Complaint Counsel); GX190 (Complaint 

Counsel); GX191 (Complaint Counsel); GX192 (Complaint Counsel); GX193 

(Complaint Counsel); GX194 (Complaint Counsel); GX195 (Complaint Counsel); 

GX496 (Complaint Counsel); GX497 (Complaint Counsel); GX666 (Complaint 

Counsel)).

7. TurboTax Website 

348. The TurboTax website is a very important part of TurboTax marketing and is integrated 

into TurboTax’s free advertising. (Johnson (Intuit) Tr. 593, 600-601; Ryan (Intuit) Tr. 

697, 757).

4fl/'22, 9: 15 AM 

Go~gle free taxfiliJY,J X 

Q All @ News l'.l Books (} Shopping [!) Videos i Mae 

About 3,650,000,000 results (0.40 seconds) 

Ad · httpsJ/turbotax.intult.com/free/taxes 

Turbo Tax® Free Edition - $0 Fed. $0 State. $0 To File. 

Free For Simple Tax Returns Only Wrth Turbo Tax® Free Edition. Get Your Max Refund Today. 

Free Tax Refund Est mate· Advance Child Tax Credit · Turbo Tax® &;I-Employed 

free taxfiling - Google Search 

Tools 
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349. Any consumer “interested in trying to use TurboTax,” including TurboTax Free Edition, 

must “access the product through” the TurboTax website (or its mobile app equivalent). 

(Johnson (Intuit) Tr. 593; GX439 (Ryan (Intuit) Decl.) ¶ 28). 

350. Consumers can arrive at the TurboTax home page in various ways, including by clicking 

on (1) links in online search results; (2) certain TurboTax display advertisements; (3) 

links on third-party websites, blogs, or media articles; or (4) links to the home page on 

the TurboTax website, blogs, or press releases. (Ryan (Intuit) Tr. 697, 757; GX178 

(Intuit); RX505 (Intuit) at INTUIT-FTC-PART3-000601014, 1016; RX93 (Intuit) at 1; 

RX64 (Intuit) at 3; see also Rubin (Intuit) Tr. 1564-1565). 

a. Advertising on TurboTax Website

351. During TY 2018, the TurboTax website home page included the following image: 

 (GX342 (Complaint Counsel) ¶ 79; GX163 (Complaint Counsel)). 

352. In its repetition of the word “free,” the advertisement described in F. 351 is materially 

similar to the “free, free, free,” television and online video advertisements described in 

sections II.B.2, B.4.c. 

~ intuit 

,_,turbotax. Products & Pricing Tools & Tips After You File Help Security Tax Reform 

That's right. Turbo Tax Free is free. 

Free, free free free. 

$0 Fed. $0 State. $0 To File. 

Easily and accurately file your simple tax returns 

for FREE, guaranteed. See why it's free 

,,,,,., 
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353. During TY 2018, the TurboTax website home page included the following image: 

(GX342 (Complaint Counsel) ¶ 79; GX164 (Complaint Counsel)). 

 

354. During TY 2019, the TurboTax website home page included the following image: 

(GX342 (Complaint Counsel) ¶ 95; GX166 (Complaint Counsel); see also Shiller 

(Complaint Counsel) Tr. 200; GX166-A (Complaint Counsel)). 

Products & Priong Tools & Tips Attor You F,le Holp Soconty Ta). Reform 

FREE 

Guaranteed. 

$0 Fed. $0 State. $0 To File. 

E.asily and accurately file your simple 

tax returns for FREE. See why it's free 

t)r:;-;botax 

FREE 

Guaranteed. $0 Fed. $0 State. $0 To File. 

Get up to a 50% head start to save time 

Transfer last years info from Turbo Tax or another 

preparer for free. and your simple tax returns 

can be well on their way to complete. 

intuit 

f} turbotax (!) quickbooks €) mint 

One account. Evwythtng lntu,L 

Us.er ID 

PassWOfd 
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355. During TY 2020, the TurboTax website home page included the following image: 

(GX342 (Complaint Counsel) ¶ 125; GX183 (Complaint Counsel); GX183-A (Complaint 

Counsel)). 

356. During TY 2021, the TurboTax website home page included the following image: 

(RX367 (Intuit) at INTUIT-FTC-PART3-000608428; Johnson (Intuit) Tr. 593). 

.,. ..... 1;1turbotax. 

FREE 

Guaranteed 

SO Fed. $0 State. SO to File. 

kn simple tax 1eturns only 

Trnnsfer last year's ,nfo from Turt>olax or anothar 

preparer for a head ltarl on your lede~I and &tale 

tax.es with Turbo Tu Free Ed1t1on. 

Hill 

Fi5#1-I 

intuit 

(J • , .. o ~•ooo o • 

.............. ,.. ..... .... '--'••i-W,.• 

---
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357. On March 26, 2022, the TurboTax website included the following image:

(GX342 (Complaint Counsel) ¶ 190; GX486 (Complaint Counsel)). 

358. On March 31, 2022, the TurboTax website included the following image:

(GX342 (Complaint Counsel) ¶ 187; GX483 (Complaint Counsel); GX483-A (Complaint 

Counsel); see also Shiller (Complaint Counsel) Tr. 201). 

fl Turbolax t:P1mlS :c f lcll:<' X + 

f- -'), C a tu1botax.intuiccom 

File FREE with 

America's #1 free 

tax prep provider 

F,,,, ................ ,. ... ... 

FREE 

SO Fed. $0 State. $0 to File. 

ro, i.hnplt taK r1J:l11m-s nnly 

Transfer last yea(s irio for a head sun ooyou, taxes 

\\1th Torbolax free E6tlon. 

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e. 

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X 

I 
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b. Disclosures

i. Hyperlinks on TurboTax Website Home Page 

359. In Tax Years 2021 and prior, advertisements for TurboTax free filing offers on the 

TurboTax website home page that referred to “simple tax returns” or “simple tax returns 

only” or “Forms 1040EZ/1040A” were themselves color-contrasted hyperlinks or were 

adjacent to hyperlinked text stating “See why it’s free.” (RX1263-A (Intuit); RX1215 

(Intuit); RX1214 (Intuit); RX1213 (Intuit); RX1212 (Intuit); RX1211 (Intuit); RX1210 

(Intuit)). 

360. In TY 2017, the TurboTax website utilized a pop-up screen in connection with the 

TurboTax “AbsoluteZero” offer, depicted below: 

(RX25 (Intuit); RX389 (Intuit); RX1271-A (Intuit)).

361. In TY 2018, consumers who clicked on the hyperlinked text “See why it’s free” on the 

TurboTax website, such as that appearing in GX163 and GX164, referenced in F. 351 

and F. 353, would receive the following pop-up screen: 

b Absolut• Zero , .. lly fre.? 

W y I , n >'hng u I lo yov, k<lcnl (104 )£2/1'4lo\ •ncl 

c• o u,es. n. .. ., ltl\C«I ,.,.o ~• ~• tJ,,.. """ bo fled bclo•etho olf~• ~ 

CUI~ wd r-.c:•tv• ~n ~1 ft,')h(• fi'IO th df.H N'd «b•• 

Join the m,lhons who file for SO 

• L4•d~ &.u ►-~ 100 OCO 

:'t <>•m • lvr,e.,, crul P">1nrt) 

• C> :St\l tc!I lmflunctlll 

• Oo,,'Hv.n a ...,.,,_ o, "-1099 " tr.tt>tnl> 

• Oo,,"t h.> ~ ,,.,, moior modal c. ,.,. •• 

How does TurboT.ax m•ke any money? 

w 

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r.cc ~ttOIOI ',OJIU>e11Crlrff &l:Nryolo 

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• 4!S \~ 

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2 4ll TI, ~om "-:CCI 10 V tv,, ,n:t JYhl copt;:t ol .ii ro<,r compbtod Tu,t,c,• n ,et..,,,u 

Whatoow? 
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(GX342 (Complaint Counsel) ¶ 80; GX165 (Complaint Counsel)). 

362. In TY 2020, consumers who clicked on the hyperlinked text “simple tax returns” on the 

TurboTax website home page, such as that appearing on GX183 (F. 355), would receive 

the following pop-up screen: 

Is Turbo Tax Free Edition really free? 

Vas. we guarantee you'll Pa( no~h,ng 101 le your~ ~ le led9ral and s1g10 1exes 

Join the millions who file for $0 

50 m 11,on narct-,.,orklog ia,payor~ can Mo rne r sl'l1p!Q fodorat and <t~ 1~• for 

httl:I. Yuuet111 fil1:1v,i 1h Tu1bo~t1x l n,E,~tJ,~011 ,l yuu Oll~hi:A~thelOIIUIMllj) 

siru3t1ons; 

• W-2 1TlCOtllt, 

I Ir IM<I 1t1l~hll.;I ~!In d1v1<1@11d 11,co1,l@ O+po!IM<I on fl 109Q l\f 01 IOQR DIV 

C a,m the standa1d dedvctlon 

Eamec Income Tax Credit (EiC) 

Cnild fi,I}( c,ed IS 

Situ1'tions not cove,-«! in Turbo fox i:roo Edition indud~ 

1tem1N d deduct ons (Schedule A) 

Busine-ss or I 090-MISC ncoma (Schedulo C) 

Stock ~oto: (Scnoduto O) 

Rontdl prcpcrt-{ ncomo (Schodulc E) 

c.:oo,ts. deductions o1d income: repc..~d on schedules 1-6. such as the 

St..ident Loan Interest Deduction 

How does Turbo Tax make any money? 

Customers with more ccrn~x tax sttuanc..1s vt1II file wrth our other Turbo Ta:.: 

I 

I 

p1odJCl~ lhet orov1det1ll thei u!Jhl 10-ms erxi ouidfmCelhevueed we,:,1soo1 e, 

1 odd1Lonol bcnc'iro tt'tJt 90 boyond 11 ng \'Our ttue,. but thc.y ore complc1cty Ojj~ior.JI 

and aro not requirod 10 f 19 your taxes for freo 1-/anv of our cu910met~ vaue 

tidt.hl (.)lldl 11:!~luie::; llke 

• One-on--one hQlp for anS\·/Qrs, on Cl€1mand w lh a Turbo Ta'< spoc1aho;1 

• 24n Ta>-RGrum Acct,;~ 10 ""~ 3nd pnn1 cop10~ ot all your complotoO: 

Tu,boTa-< rotL1 rns 

WJth Turbo fax rroo, the pow« to fie tor troo is all yours! 

MIAH 
PUBLIC

112 

(GX342 (Complaint Counsel) ¶ 127; GX184 (Complaint Counsel)). 

363. In TY 2021, consumers who clicked on the hyperlinked text “simple tax returns only” on 

the TurboTax website, such as that appearing on RX367, GX483, and GX486, referenced 

in F. 356-358, would receive the following pop-up screen: 

Yo u can fi e with Turbo Tax Free Editio n 

if you have a simple tax return.• 

'AJimpletaxret11rni,Form 1040onlyORFc,m 1040 

-+- Un11mployment Income. Situation, c,:,,ere d in 

TurboTax Fru Edrtion indude: 

• W,2 incomt 

• Limrttd inttrtst and d;.idtnd incom,i rtporttd 

ona1099-INTor1099-0IV 

• Claimin9thtatand•ddeductioo 

• E•n•d lncom• T"" Ctod,t (EiC) 

, Childt,.,,crtd•t• 

• Un,impl.,,.mont lncomo r,iportid oo a 1 099-G 

Situation,notcovered ln TurboTaxFree 

Edltlon lndude 

• ltimizoddtductioo1 

• Bullnu1or 1099-NEC1ncom• 

, Stocksaiu 

• R•ntolprop•t'tl'lncom, 

• Credit\ d i duction• and income reportid oo Khedule, 1.3, "-'d>MthtStudent l oan 

lntertltDtduc:tioo 

How dot1 TurboTax make any mon,y7 

Cu1tomu1with mort complex ta,: aitulltloni wlll filt 

withoor(l(h,irTurboTa,;produc:tsthatpro,,idioll thi 

rl9ht forms Wld guidW'lct ffi"Y nud. Wt al.adft r 

additiooal btntfit.that9<>bQ)'oodfilin9yoort""u, 

b utthoty •• compl•t•ly optional and•• n(l( ••quir•d 

tofiltyoo,t11P:uforfruManydoorcultomtr,volut 

odditiooolfntures hkt· 

• Ont,oo.oothtlpforan,..,.u1,ondtmandwitha 

TurboTa.: lf)tcialist 
PUBLIC

113 

(Johnson (Intuit) Tr. 594-595; RX3 (Intuit); GX342 (Complaint Counsel) ¶ 188; see also

Shiller (Complaint Counsel) Tr. 201-202).

364. The pop-up disclosure screen that is hyperlinked to “simple returns only” language on 

advertisements on the TurboTax website has contained materially the same disclosures as 

the screen reproduced in F. 362 (TY 2020) and in F. 363 (TY 2021) since TY 2018, 

although the applicable qualifications disclosed varied by the year. (RX4 (Intuit); RX20 

(Intuit); RX21 (Intuit); RX390 (Intuit)). 

ii. TurboTax Free Edition Landing Page 

365. For Online Display Advertisements and Paid Search Advertisements for TurboTax Free 

Edition, consumers who clicked on the advertisements were taken directly to the 

TurboTax Free Edition page on TurboTax’s website, referred to as a “landing page.” 

(Johnson (Intuit) Tr. 595-596; Rubin (Intuit) Tr. 1563-1565; Ryan (Intuit) Tr. 697). 

You can file with Turbo Tax Free Editio n, 

Turbo Tax Live Basic, o r Turbo Tax Live Full 

Service Basic if you have a simple tax return.• 

• A 51mp4o tax rotum Is Form 1040 only. 

Situations cov0<ed by Turbo Tax Ffoe Edition, 

Turbo Tax Ltvo B~ and Turbo Tax Liv• Ftrl SO<vke 

Basic 

W-'1 HlCOfTW 

limited ,ntftHt and d.Yid~ income t$0fled 

on a 1099•1Nf °' 1099·DIV 

ci.;m,ng ,1,e ..-rd deduction 

Ea,r>ed Income Tax C,ed,t (OC) 

Child i.tx credits 

StucHtnt l.oiin lnt.rMt daduc.tion 

Situations not covered byTur1>oTax Ffee Edition. 

Turbo Tax Live B~ and Turbo Tax I.Ive Ftrn 

SO<vlce lbsk 

hemued deductions 

Unomploymo<,1 w,com& roponed on a 1099-G 

Bus.ness Of 1099-N[C anc.ome 

S1ockwlff 

R~t.1I p«>p«ty income 

Credtts~ deductJOnS -,ct income reported on 

ld>«lulesl-3 

How does Turbo Tax mako any monoy? 

Custorner-s with rnor-e complex tax Sltwlhons will m. with o...- pa.cl Turbo Tax products that p,oilide all the 

Mld,tional lo,ms ond gu,d.,nc1> llwy ,__ We abo 

offP< add,t>onal benefits 11>a1 go l,,.yond fil.ng you• 

LUM, bot they are OpbOnal and are not r~red to 

file .wnp~ taxes fo, freie. We hope th.t, over tinw, ~ 

ow custonwR with s,imple returns n.ed more 

upabilst,e-s as lhe-1r fi~I s.b.ul..,ons change (b-

•umpk- owni"9 • home, h.Mng • child. ~•ng 

.,,...,,,..,,.t they l>aw loved our p,oduas and 

service,s so much that they wJI choose o... pa.cf 

Turbo Tu offeongs 10 p,-.JNr• and file th.ir returm 

X 
PUBLIC

114 

366. RX1527 is a screenshot of a pertinent portion of the TurboTax Free Edition landing page 

in TY 2018. 

(RX1527 (Intuit)). 

367. In TY 2019, the TurboTax Free Edition landing page included two color contrasted 

hyperlinks for the “simple tax return[s]” qualification. (RX1528 (Intuit); see also

RX1529 (Intuit) (TY 2020 TurboTax Free Edition landing page with color contrasted 

hyperlinks, “For simple tax returns only” and “If you have a simple tax return, you can 

file your taxes online for free with TurboTax Free Edition.”); RX1530 (Intuit) (TurboTax 

Free Edition landing page for TY 2021, containing two statements of “For simple tax 

returns only,” one in color contrasted hyperlink, plus the additional statement, “If you 

have a simple tax return, you can file your taxes online for free with TurboTax Free 

Edition.” )). 

◄ 

~ ., ...... ~~,, ,., ..... .. . ..M~ ?OIi 

HURRY ... Early bird pricing ends February 28 ~~ 10 ~2 52 ,j, 

tJ~ botax. Products&:Pr1cm9 Tools&Tips AfterYouF,le Help S8cur,ty T,uRefOJm 

Exhibit 

RX 1527 

Turbo Tax Free Edition 

Simple tax returns 

Free federal taxes and state taxes ** 1tM131'9S6~-,, 

Mii#\1 

$0 Fed. $0 State. $0 File. 
PUBLIC

115 

368. A screenshot of the TurboTax Free Edition landing page for TY 2021, referenced in 

F. 367, is set forth below: 

(RX1530 (Intuit)). 

369. The TurboTax Free Edition landing page includes a chart listing every TurboTax product 

and identifying which IRS tax forms and schedules each product covers. (RX1527 

(Intuit); RX1528 (Intuit); RX1529 (Intuit); RX1530 (Intuit); RX1531 (Intuit); see also 

Rubin (Intuit) Tr. 1567-1568). The chart on the TurboTax Free Edition landing page in 

TY 2021, presented as follows:

FEATURES 

Sott ByPmduo: 

lAst chance to filt few FREE w th ex.pen help 

Simple tu. ,-ii.Ifni only I Mu.t file by l/J 1 

Turbo Tax Free Edition 

for mcile WI rrt1.1ms only 

SO Fed. SO State. SO to File.' 

Why use Turbo Tax Free Edition? 

K'jW have a, ""f)""t..-.i rl'.lllJl'n, youc.in f,k;, yo,.x ta.xes onlineforfrot wid'i Turl>oT.Jx Free 

Ed,:-ion M t ll'l'lport y0ur W-2, an~or bat< q~t1ons about y0u< l,f~. ~nd wo·u ~ t yO\J )Wr 

m;utimom 1efund, gu.w~Need. 

KEVIEWS T AX F ORMS 

Sort &,- Form S!carc.h fo,ms 

REQUIREMENTS 

Deluxe Premier Self-E111ployed 

Convnonty Filed Tax Fonns a nd SchedulH Setf--En,ployed 

1040 

Schedule EiC 

Schedule 1 

Schedul• 2 

Schedule 3 

Schedule A 

Xhedule B 

Schedule C 

Sched ule SE 

schedule D 

Schedule E 

Schl!duleC 

U.S. Ind ividual Income Tax Return 

Earned Income Credit 

Additional Income and Adjustments to 

Income 

Additi-On.al Taxes 

Add1tk>nal Credits and Payments 

ltemrzed Deductions 

lntere:.t ~nd Dividend Jn,i,:;ome 

Profit or Loss fn:,m Ousiness (Income) 

Setf Employment Tax 

cap,tal Garns and Losses 

Supplomontal lncom• omd los.s, including 

rental property 

Profit or Los.s Worn Busine.s (Exp♦~} 

• 

• 

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PUBLIC

116

370. A consumer does not have to enter any personal information in order to review any of the 

information on the TurboTax Free Edition landing page, including the hyperlinked 

information. (Rubin (Intuit) Tr. 1566-1567).

c. Products & Pricing Page

371. When consumers click a button on the TurboTax website to start preparing their taxes, 

such as the “File for $0” button shown on the image in F. 354 (GX166), they are taken to 

the TurboTax website “Products & Pricing” page. (Rubin (Intuit) Tr. 1570).

372. The Products & Pricing page lists each TurboTax product, its price, and the type of tax 

situations that are applicable to each product. (F. 375-376). The purpose of the Products 

& Pricing page is to direct consumers to “the right products.” (Johnson (Intuit) Tr. 598).

373. In TY 2021, 47% of new TurboTax users viewed the TurboTax website Products & 

Pricing page before creating a username and password. (RX52 (Intuit) at INTUIT-FTCPART3-000602282).

374. The TurboTax website Products & Pricing page is shown to all consumers before they 

start preparing their taxes with any TurboTax product. (Johnson (Intuit) Tr. 567; Rubin 

(Intuit) Tr. 1570-1571; RX52 (Intuit) at INTUIT-FTC-PART3-000602282; RX578 

(Intuit) at INTUIT-FTC-PART3-000601612).
PUBLIC

117 

375. In TY 2021, the TurboTax website Products & Pricing page appeared as follows: 

(GX342 (Complaint Counsel) ¶ 181; GX482 (Complaint Counsel)). 

376. RX138, shown in part below, is a screenshot of the TY 2020 Products & Pricing page on 

the TurboTax website. 

-f'i turbotax N ew! File FREE; D o it y ovrnelf, w itl, e xpert ll e lp , o r llave an expert do y o ur t a xes. Only from TurboTeix 

S"mple taxreturnsonly 1 Mustfi1eby3/31 

Tell us about you - we'll recommend the right tax solution 

Select all that apply: 

ffi 

ti 

r m ..,H'-employe d/on 

·ndependent 

America's #1 brand of tax software 

Free Edition Deluxe Premier Self-Employed 

Pena onnl & bu,nes• ·ncomennd 

$0Fed. $0State.$0toFile -&-5-9- $39~ 489- $69~ 

Ei!H 

File for $0 with 

Free Edition 

..; Jumpstartyour taxe s, 

snapaphotoofyourW -2 

el Your tax returns&docume nts 

FREE 

so so so Feel State to File 

..; Ma.im·zesmortgageand 

property tax deductions 

✓ Credit {EJC) andchildtaxcr~dits me Tax 

Ga daace acaseo<acaod,< backedb>c" ' 

✓ o fTurboTaxspe·arsi:s anda/omers ·1y 

,n,eAgreement l Jt'vncy l Sero"tylG"e/eedbnd< I Cobrow,e 

Cl2022 1ntu.t lnc.J\Jlfg hnre"""'ed 

O. search 0He lp 
PUBLIC

118 

(RX138 (Intuit)). 

377. The TurboTax website Products & Pricing pages in tax years prior to TY 2020 were 

materially similar to those shown in F. 375 and F. 376. (RX13 (Intuit); RX52 (Intuit) at 

INTUIT-FTC-PART3-000602282; RX210 (Intuit)). 

378. References on the TurboTax website Products & Pricing page to the phrase “simple tax 

returns only” and its variants were color contrasted hyperlinks. (F. 375-376). When 

clicked, these hyperlinks brought up a pop-up screen, such as that shown in F. 363, with 

details on qualifications for TurboTax Free Edition. (Johnson (Intuit) Tr. 597-598; Shiller 

(Complaint Counsel) Tr. 210-211, 219-222). 

379. The TurboTax website Products & Pricing page includes a tool (the “SKU Selector”) that

seeks to provide a recommendation for a TurboTax product that is appropriate for the 

consumer’s needs. (Johnson (Intuit) Tr. 565-567, 572, 596; Rubin (Intuit) Tr. 1575, 

Free Edition 

SOfn..J $0S1 • .i.,.somr~. 

Premier 

S90" 

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s120· 

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File for $0 with Free 

Edition 

You I 1M1•MOI\J!~l'l«lli<"WJ10 f,Ioyc,..;1 t«t< ... M 

•nd · wt•W•-1 'y<N tt.w.ot ~mpkl ... '9'1\HJJ 

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PUBLIC

119 

1579-1582). A portion of the TurboTax website Products & Pricing page for TY 2021 

(F. 375), set forth below, is an example of the SKU Selector in TY 2021: 

(See also RX009 (Intuit); Shiller (Complaint Counsel) Tr. 213-214). 

380. The SKU Selector on the TurboTax website Products & Pricing page has looked largely

the same since TY 2016. (GX150 (Goode (Intuit) IHT) at 104-105; RX13 (Intuit); 

RX381 (Intuit); RX8 (Intuit); RX1532 (Intuit); see also F. 531 (screenshot from 

RX1532)). 

381. Consumers were able to use the SKU Selector without creating a TurboTax account or 

entering any personally identifiable information. (Johnson (Intuit) Tr. 596, 599-600; 

Rubin (Intuit) Tr. 1571). 

382. To use the SKU Selector and receive a product recommendation, consumers can click on 

one or more of the tiles displayed that describe various life situations, such as home 

ownership, stock ownership, or self-employment. As a consumer clicks on the tiles, the 

SKU Selector presents different TurboTax product recommendations, which appear 

below the SKU Selector on the Products & Pricing page. (Johnson (Intuit) Tr. 565-566, 

599, 662-664, 672; Rubin (Intuit) Tr. 1575-1577, 1579-1581, 1613-1614; RX009 (Intuit); 

Shiller (Complaint Counsel) Tr. 213-215). 

383. The SKU Selector contains four different tiles with tax situations. The tile(s) selected, if 

any, result in a recommendation for TurboTax Free Edition. For example, if taxpayers 

indicate that they rent their home, have a job with W-2 income, and have children or 

dependents, the SKU Selector would recommend TurboTax Free Edition. (Johnson 

(Intuit) Tr. 565-566, 599, 662-664, 672; Rubin (Intuit) Tr. 1575-1577, 1579-1581, 1613-

1614; Shiller (Complaint Counsel) Tr. 216-217). 

.. 

Tell us about you - we 'll recommend the right tax solution 

Select 1111 that apply: 

~ l~I a I w,nt to mu1mi1e I w,nt • u,c expert to I htve, job 

deductions ,nd credits do my teKes for me (recerved W,2) 

® tl::J ~ I w,nt, tu expert to I dontted OYer $300 to I'm p1ying off i1:udent 

review my return ch1mty '°'"" 

ti I .sold itOCk, crypto, or 

~her invewnenu 

le~ 

I own rentel property 

~ I own II home 

,§_ 

D I'm self.empl~ed/en 

mdependent 

contractor 

Am I self-employed? 

l hive children Of 

dependents 

~ 

I own, ;mell bu51nes.s, 
PUBLIC

120 

384. If a consumer selected a tax situation not covered by TurboTax Free Edition, the SKU 

Selector would shade out the TurboTax Free Edition product as an option and 

recommend a paid TurboTax product instead. (Shiller (Complaint Counsel) Tr. 215-218; 

RX11 (Intuit) (reproduced below)). For example, if taxpayers selected that they owned a 

home, the SKU Selector would suggest the TurboTax Deluxe product. (RX11 (Intuit)). If

taxpayers selected that they “sold stock, crypto, or own rental property,” the SKU 

Selector would recommend the TurboTax Premier product. (RX12 (Intuit) (reproduced 

below)).

(RX11 (Intuit)). 

Select all that apply for a recommendation: 

~ m s lw.EJ l-:im.D:imin.i l wilntilllalC!i!XpCftlodc l ll.r,,,,i:,iljob 

d'Jitduciions.~cri;idil:. my1a."uu;b11Kt {recm-ed W 2) 

® 0 ~ l ~ilt.lt:cxpcrtto ldo~DY11!1 ll00to I'm ~gall ~u:d,mt 

rav icwrnyrcium charity lo;:ira 

You c m do lt 

-I paid rent 

li l sold'.itock.~to,or own 

rcnli:ll popcrty 

rn ~ CJ l'm!;elf~d/an 

iridc!~nt o::intr::i.c\01 

11m I self ompkl,ed' 

R""I exp<>rtshglp 

or do It tor you 

~ lhilYilChild" t/lQf 

dcpcnd.£:nl:i 

~ 

l Cl'NT1 :11 ~m:ill bu~fflQ.z 

America's #1 brand of tax software 

Free Edition Deluxe Premier Self-Employed 

Filefor$0 

t-ioreD@t1jl:i,V 

Everyth ing in Free Edition,. plus 

M::kt:imile t.J:4:dcductacns ~credits 

$59* 

Start for free t.!yarilywhii;i )lllll&la 

(4..516l.lS2rC\'i£W!;~ 

Hide Details ,..,, 

Maximize your deductions Do you own 

a home? 

We'll seard, over 350 tax deductiotis.aOO credits 

to frnd every tax break YO\J qualify for so you get 

you.- maximum refund, guara nteed. Homeowners. 

get step-by-step guidance to help tum their 

biggest investment into their biggest tax break. 

Startfo.-free 

........ -....... 

More Details. V 

&t 

Start for free 

....... -...... 

More[)et,ajl5. V 

✓ Get home-a-.mer tax breaks (Schedule A) 

✓ Make t he most out of cha,Mtable donalions oYE-r '$300 

✓ J umps:t:;;irt )OJr retum with last :,,ea r's Turbo Tax info or 

im!X)lt a PDF of your return from anolher tax software 

✓ C:::o.nnect with product specialisl!i 'Ilia phone and om your 

screen to get you r ta.:esdone 

✓ Ea:si lymake~hange-5 to ~ r 2021 ta.-.: return onlirie- up to 

3yearsafterIt's been fi led and accepted b'j lhe IRS 
PUBLIC

121 

(RX12 (Intuit)). 

385. Approximately 60% of new TurboTax customers use the SKU Selector, and 

approximately 57% of returning TurboTax customers use the SKU Selector. (Rubin 

(Intuit) Tr. 1581; RX53 (Intuit) at INTUIT-FTC-PART3-000601883, 1885).

386. Between 40% and 50% of consumers who use the SKU Selector receive a 

recommendation to start in TurboTax Free Edition. (Rubin (Intuit) Tr. 1581-1582). 

387. Consumers can choose to start their return in any TurboTax SKU, regardless of the 

recommendation made by the TurboTax SKU Selector. (Rubin (Intuit) Tr. 1640-1641). 

Let's tind the right tax solution tor you 

S"l"d all that apply for a ,.,commendation: 

~ l~I e p! Q ~ l w:!linll.Jm;»:im"ll'I:! l w:im~,~~rttodci 1 ..... jd> 

dcductio~ and cr~n.!. myt~lor m,c, {1cc.civcd W :i') lp;:iid rCi"ll l c-wn:11ih,amc I h:iY'C!-c .:friC!:11or dcpcnd-enl!i 

® m ~ 0 ~ CJ IE l waru:it.1i,:~r1 tc, l don.'.J!.Dd~r i]OOta I'm ~g cll~irdl:!nt 

rmoicw my rC!lurn c::h;i rit)' loans; 

lscld !.lode, crypto, e r.own l'm~lf-emp~d/.w, lown;1!';m;il l b.J!;"IIIC!:!:Z; mnblprap:;nty iOOl!p,,MdcntOJnlrxtor 

/Im I sell cmplo,ed' 

You can do it 

!El Re.a I experts help 

~ or do it for you 

America's #1 brand of tax s,oftware 

Free Edition Deluxe 

-" 

i1·1is-1' i; 1, C 

Premier 

hvestment!s and ren~I property-

$89* 

Self-Employed 

Filefoc$0 Start fOJ free 

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Start fo.-free ~...,-,.... 

More Details. v 

Everything in Deru~. plus 

You r investments and 

rental property covered 

MoreDetails.v 

Oe,ig r>ed for all levels of investing and inve-stment 

types. Automatically import ttloLJSands of 

transactions from llundreds of participaling 

financial institutions, for seaimles.s. investment 

income reporting.All to make sure you get your 

max:imum refund, g uaranteed. 

Did you sell any 

investments 

last year? 

•·•ff 

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Hide Details A MoreDetajl5V 

✓ Auto import yeur •n...estme-nt info .and ta x data 

✓ ~-s s.tock,. oryl)tocurrerwcy, bonds, ESPPs., robo1 rive.sting. rental property income. ;:md more. 

✓ We'll s..earch for mofl:! than 450 t3:t cleducriortS and credits 

to find e~ery ta:-: break you q ualify for 

✓ Connect w'ith l)roduet speci::il ists ,.fa phone aind on you r 

screen to get your ta:o:es. done 

✓ An~e~ s.imple q uestions. to e nable personalized tips and 

rma,:1m 1Ze ~ur lax o utcor.ne 
PUBLIC

122 

d. Upgrade Screens

388. Once consumers select a TurboTax product, they begin preparing their returns by 

entering their personal or tax information. To guide the entry of the relevant tax

information, the TurboTax program asks a series of questions (an “interview”) about the 

consumer’s tax situation, such as sources of income, deductions, and potential tax credits. 

(Johnson (Intuit) Tr. 672, 680-683). 

389. The TurboTax interview process begins with inquiring about the taxpayer’s sources of 

income. Most commonly, a taxpayer’s sources of income determine the right TurboTax 

product for them. (Rubin (Intuit) Tr. 1541). 

390. If customers provide information indicating that the TurboTax product they selected does 

not support their individual tax situation, they will immediately be presented with a large 

screen, such as RX318, reproduced below, advising them that they will need to upgrade 

to a different TurboTax product in order to complete their tax filing (an “upgrade” 

screen).7F

8

 (Rubin (Intuit) Tr. 1505-1506, 1583-1584; Johnson (Intuit) Tr. 674-676; RX318 

(Intuit)). 

8 The upgrade screen is also sometimes referred to in the record as a “hard stop.” (See, e.g., Novemsky Tr. 1765-

1766, 1771; GX631 (Intuit) at CC-00013296-297).

Because you sold investments, you need to upgrade to 

Turbo Tax Premier to continue 

Why do I need to upgrade? 

Schedule O 1s required by the IRS to report your ,nvestment income or losses, which 1s not covered by 

TurboTax FNe Edition 

What's included with Premier? 

Step-by-step guldanc.-we help you accurately report the sale of any stodcs, bonds, and mutual funds 

Import Investment info-automat,ca ly mport ,nvestmant info to help you save me on your taXes. 

One-on-one help-get Q.lstomiled answers to your product and support que1tions from a Turbo Tax specialist. 

Continue with Premier• for S79.99 and pick up right where you left off. State ·s additional. 

Don't worry about pull,ng out your wallet-loo for the payment option to deduct the cos from your federal refund when you file. 

Ayuda disponible an espai\ol 

• Important ofla, de nd d"ISdosun,s 

< Back This Doesn't Apply to Me Upgrade to Premier 
PUBLIC

123 

391. The median time between the point that consumers began their returns in TurboTax Free 

Edition and the point at which they received an upgrade screen (the “elapsed time”)8F

9 was 

in TY 2020 and in TY 2021. The median elapsed time in the 

program before an upgrade screen was triggered by entry of income and wages was 

in TY 2020 and in TY 2021. The median elapsed time spent 

in the program before an upgrade screen was triggered by deductions and credits was 

in TY 2020 and in TY 2021. (GX631(Intuit) at CC00013296-297).

392. Based on calculations of Intuit customer data performed by Respondent’s expert witness, 

Bruce Deal, in TY 2021, for those consumers using TurboTax Free Edition who sought to 

report sources of income other than W-2 income and limited interest and dividend 

income, approximately 50% received an upgrade screen within an elapsed time of 30 

minutes, and approximately 25% received an upgrade screen within an elapsed time of 15 

minutes. (Rubin (Intuit) Tr. 1541; Deal Tr. 1334-1340; RX1027 (Deal Expert Report) 

¶ 105 & Figure 12). 

393. Consumers who encounter an upgrade screen after starting their tax return with TurboTax 

can stop their use and leave TurboTax, which Intuit refers to as “abandonment.” Based on 

calculations of Intuit customer data performed by Respondent’s expert witness, Professor 

Peter Golder in TY 2021, the abandonment rate for TurboTax online filing products was 

approximately 21%. (RX1018 (Golder Expert Report) ¶ 59 & Figure 4; see also Rubin 

(Intuit) Tr. 1585-1587). 

C. Extrinsic Evidence

1. Novemsky Survey and Opinions

a. Novemsky Survey 

394. Complaint Counsel’s expert witness, Professor Nathan Novemsky, Ph.D., designed and 

implemented an online consumer perception survey (the “Novemsky Survey”) to address 

several questions of interest about taxpayers who do not qualify for TurboTax Free 

Edition under Intuit’s criteria. (GX303 (Novemsky Expert Report) ¶ 6). 

i. Type of Survey

395. A perception survey, rather than a copy test, is the appropriate design to measure existing 

consumer perceptions. (GX303 (Novemsky Expert Report) ¶ 30; see also Novemsky Tr. 

384-385). 

396. In a copy test, test group respondents are shown a stimulus such as an advertisement that 

contains the allegedly deceptive claims, whereas control group respondents are shown a 

9 The “elapsed time” measures only the length of time that the TurboTax website was open on the consumer’s 

browser and does not measure the length of time the consumer was actively engaged in tax preparation. (Deal Tr.

1336-1338).
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stimulus that does not contain the allegedly deceptive claims or are shown no stimulus at 

all, and the responses from each group are compared. A critical component of this 

framework is the ability to identify a control group that has not been exposed to the 

allegedly deceptive claims so that their perceptions are not tainted by the claims being 

tested in the survey. (GX303 (Novemsky Expert Report) ¶ 30).

397. Given the extent of Intuit’s advertising, a copy test that measures the impact of a single or 

a few allegedly deceptive advertisements is not appropriate for measuring the cumulative 

effect of Intuit’s marketing campaign. (GX749 (Novemsky Rebuttal Expert Report) 

¶¶ 18, 21-23).

398. Perception surveys are used to determine what consumers are thinking based on their 

reactions to information that is already available in the real marketplace. (Novemsky Tr. 

352, 385, 521).

399. A key advantage of measuring existing consumer perceptions through a perception 

survey is that these perceptions are shaped by all the information consumers have 

accumulated from various sources, for example, the “free, free, free” advertisements, as 

well as any disclosures they may have noticed and accessed. (GX303 (Novemsky Expert 

Report) ¶ 96; see also Novemsky Tr. 405 (“Consumers responding to my survey, [have] 

seen whatever they saw in the world – so if these ads were in the marketplace prior to my 

survey being launched, then these may well have been something that the consumers 

were exposed to prior to seeing my survey and may have [been] included in their 

responses to my survey.”); Novemsky Tr. 521 (“I wanted to get reactions from people as 

they would have seen them or not seen them or paid attention or not paid attention in the 

real marketplace. I was not trying to artificially draw their attention to a specific ad or a 

specific claim in an ad . . .”)).

ii. Methodology

400. The design and implementation of the Novemsky Survey were consistent with guidelines 

for survey research offered in litigation that are set forth in the Federal Judiciary Center’s 

“Reference Guide on Survey Research” and articulated in the Manual for Complex 

Litigation. The Novemsky Survey sample was chosen to be representative of the 

population of interest and the results of the survey can be generalized to the population at 

large with a degree of scientific certainty. (GX303 (Novemsky Expert Report) ¶ 5; see 

F. 401-421).

401. The consumers of interest for the Novemsky Survey are potential taxpayers who at the 

time the survey was conducted were considering using an online tax software to file their 

2021 taxes and would not have qualified for TurboTax Free Edition. Consistent with this 

target, Novemsky recruited into the survey respondents who: (i) were planning to file an 

income tax return in 2022 (based on income in 2021); (ii) make or contribute to tax-filing 

decisions in their household; (iii) have considered or might consider using an online tax 

software; and (iv) who would not have qualified for TurboTax Free Edition. (GX303 

(Novemsky Expert Report) ¶ 21).
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402. The Novemsky Survey was conducted between March 11, 2022 and March 24, 2022 

among people who were planning to file their taxes in the last five weeks prior to the tax 

filing deadline and people who planned to file their taxes after the tax filing deadline. 

Fielding the survey in this time period had the advantage of reaching potential taxpayers 

when tax filing is more top-of-mind, as many consumers are thinking in earnest about 

how they will file their taxes. (GX303 (Novemsky Expert Report) ¶ 22).

403. Novemsky screened out individuals who could file their taxes for free using TurboTax 

according to the criteria set forth by Intuit.9F

10 (GX303 (Novemsky Expert Report) ¶¶ 24-

25; Novemsky Tr. 379-380).

404. Because the purpose of the Novemsky Survey was to determine the impressions that 

consumers who were ineligible to file for free had about their ability to file for free, 

excluding consumers who were eligible to file for free resulted in the correct target 

population. (GX303 (Novemsky Expert Report) ¶ 21; Novemsky Tr. 359).

405. Novemsky screened out individuals who had already filed their 2021 taxes by the time 

the Novemsky Survey was conducted in March 2022. (GX303 (Novemsky Expert 

Report) ¶ 22; Novemsky Tr. 360).

406. Because consumers who had already filed their taxes might already know for a fact 

whether they were eligible to use TurboTax to file their returns for free and because the 

intended audience for TurboTax marketing at the time that the Novemsky Survey was 

conducted consisted of taxpayers who had not yet filed their returns, excluding 

consumers who had already filed their taxes resulted in the correct target population. 

(GX303 (Novemsky Expert Report) ¶¶ 21-22; Novemsky Tr. 378-379).

407. Within the target population, Novemsky analyzed survey results for two subgroups 

(F. 408-409) (referred to herein collectively as the “Survey Respondents”). (GX303 

(Novemsky Expert Report) ¶ 7; see also Novemsky Tr. 411-412).

408. The main group of interest in the Novemsky Survey (Group A) consisted of respondents 

who reported that they had not filed their income taxes using TurboTax within the past 

three years and, as such, were less likely to respond to survey questions based on their 

past experience using TurboTax. (GX303 (Novemsky Expert Report) ¶ 7; see also

GX749 (Novemsky Rebuttal Expert Report) ¶ 52).

10 Based on Intuit’s criteria, taxpayers who were not eligible to use TurboTax Free Edition for filing 2021 taxes 

included those who had (i) itemized deductions, (ii) unemployment income reported on a Form 1099-G, (iii) 

business or Form 1099-NEC income, (iv) stock sales, (v) rental property income, or (vi) credits, deductions and 

income reported on other forms or schedules. (GX303 (Novemsky Expert Report) ¶ 24). Thus, to qualify to 

participate in the Novemsky Survey, individuals had to satisfy one or more of the following three conditions: (i) 

earned income either from unemployment, working as an independent contractor, self-employment, or a small 

business owner (reported on a Form 1099-NEC, Form 1099-MISC, or Schedule C), stock sales, or rental properties; 

(ii) had only W-2 income, but plans to itemize deductions; or (iii) had only W-2 income and plans to take the 

standard deduction, but received alimony or received, exercised, or disposed of stock options issued by an employer 

as part of their compensation. (GX303 (Novemsky Expert Report) ¶¶ 21 n.19, 25).
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409. The second group of interest in the Novemsky Survey (Group B) consisted of 

respondents who reported that they had filed their income taxes using a paid online 

version of TurboTax within the past three years. (GX303 (Novemsky Expert Report) ¶ 7; 

Novemsky Tr. 380-381). Because Group B respondents recently paid to use TurboTax,

they would be more familiar with TurboTax product offerings than Group A respondents 

and would be expected to be less likely than Group A respondents to have formed the 

impression that they could file for free using TurboTax. (GX303 (Novemsky Expert 

Report) ¶ 8; Novemsky Tr. 412, 526-527).

410. Novemsky analyzed results for Group A and Group B separately, as they are distinct 

populations and should not be combined with one another. (GX749 (Novemsky Rebuttal 

Expert Report) ¶ 52; Novemsky Tr. 525).

411. In designing the Novemsky Survey, Novemsky undertook a number of measures to 

ensure reliable survey results. These included: (a) requiring participants to pass attention 

checks and agree to comply with survey instructions, which screened out inattentive 

survey participants; (b) using pretests to verify that Survey Respondents had no difficulty 

understanding the survey and were able to answer the questions without difficulty; (c) 

presenting a clear set of choices and answers that included options such as “I do not have 

enough information,” “[o]ther,” “[d]on’t know/[n]ot sure” or “I’m not sure” to avoid the 

possibility of Survey Respondents guessing in response to closed-ended questions; and 

(d) rotating the answer options to control for order effects.10F

11 (GX303 (Novemsky Expert 

Report) ¶¶ 40-41, 57-58, 60, 62-63; Novemsky Tr. 386, 391-396).

412. The Novemsky Survey included both open-ended questions (i.e., questions that require 

the respondent to formulate and express an answer in his or her own words) and closedended questions (i.e., questions that provide the respondent with an explicit set of 

responses from which to choose). (GX303 (Novemsky Expert Report) ¶ 43; Novemsky 

Tr. 387).

413. The Novemsky Survey used open-ended questions to prompt Survey Respondents to 

contemplate the issues relevant for answering closed-ended questions and motivate them 

to invest more effort into the thoughts that inform their answers to closed-ended 

questions. (GX303 (Novemsky Expert Report) ¶ 43; see also Novemsky Tr. 387-390, 

393).

11 To control for order effects, the order of the questions and the order of the response choices in a survey are 

rotated, so that, for example, one-third of the respondents have Product A listed first, one-third of the respondents 

have Product B listed first, and one-third of the respondents have Product C listed first. If the three different orders 

are distributed randomly among respondents, no response alternative will have an inflated chance of being selected 

because of its position, and the average of the three will provide a reasonable estimate of response level. (GX303 

(Novemsky Expert Report) ¶ 60 n.86 (citing Shari Seidman Diamond, “Reference Guide on Survey Research,” in 

Reference Manual on Scientific Evidence, Third Edition, (Washington, D.C.: The National Academies Press, 2011), 

p. 396).
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414. Novemsky designed the Novemsky Survey around closed-ended questions because 

closed-ended questions are more suitable for assessing choices between well-identified 

options. (GX303 (Novemsky Expert Report) ¶ 43; see also Novemsky Tr. 390-391).

415. Novemsky deliberately used phrases in the answer choices that allowed Survey 

Respondents to express their state of mind, i.e., “I think I can file my 2021 income taxes 

for free using TurboTax online software” and “I don’t think I can file my 2021 income 

taxes for free using TurboTax online software.” He chose these phrases rather than more 

definitive wording that expresses certainty or specific knowledge, such as “I can file for 

free” or “I am sure I can file for free,” because the level of certainty in a consumer’s 

knowledge about the cost of filing with TurboTax does not need to be absolute for that 

consumer to try to use TurboTax for free. (GX303 (Novemsky Expert Report) ¶ 49; see 

also Novemsky Tr. 391).

416. After the completion of the Novemsky Survey, Novemsky conducted robustness checks 

to confirm that results were consistent under other reasonable approaches or assumptions, 

which confirmed that his baseline results are qualitatively unchanged across each of these 

robustness tests. (GX303 (Novemsky Expert Report) ¶¶ 92-94).

417. There is no factual basis for concluding that any Survey Respondents who may have been 

familiar with any litigation against Intuit biased the results of the Novemsky Survey. 

(GX749 (Novemsky Rebuttal Expert Report) ¶ 75; see also Novemsky Tr. 469 (“Q. So 

you didn’t do anything to identify whether or not any of the people that participated in 

your survey were aware of the litigation, right? A. I did. I looked at thousands of openended responses to see if there was any mention of the litigation and I found exactly one 

out of the thousand.”)).

418. Novemsky allowed participants to opt out of the Novemsky Survey upon completion of 

the survey and ensured that their submissions were deleted. (GX303 (Novemsky Expert 

Report) ¶¶ 50-51; see also Novemsky Tr. 397).

419. Approximately 21% of survey participants (164 of 771) opted out of the Novemsky 

Survey. (GX303 (Novemsky Expert Report) ¶¶ 51, 71; see also Novemsky Tr. 397).

420. Because the opt-out question came at the conclusion of the Novemsky Survey, after the 

main questionnaire, the structure of the Novemsky Survey ensured that the identification 

of the sponsor of the survey did not influence the survey responses themselves. (GX303 

(Novemsky Expert Report) ¶ 50).

421. Fewer than 1% (6 of 771) of the Survey Respondents indicated that the elements of the 

survey influenced their responses. Excluding these respondents would have had no 

material effect on the conclusions Novemsky reached. (GX749 (Novemsky Rebuttal 

Expert Report) ¶ 47; Novemsky Tr. 524 (“Q. And what proportion of your total survey 

population are those six respondents? A. They are less than 1 percent. Q. And what does 

that proportion say to you about the reliability of your survey? A. It says the reliability is

very good. They were asked directly why do you think this, and if less than 1 percent say 
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it was something about the survey, it suggests that the survey was not a substantial cause 

of this misperception.”)). 

iii. Survey Results

422. The Novemsky Survey included two open-ended questions to get Survey Respondents to 

explain their thoughts and center them to think actively about the issues of interest in this 

case. The two open-ended questions were: “What is your understanding about whether or 

not there is a cost to filing your own income taxes using TurboTax online software?” and 

“You may have already said this above, but please tell us again, in your understanding, 

who, if anyone, can file their taxes for free using TurboTax online software?” (GX303 

(Novemsky Expert Report) ¶ 44). 

423. The open ended-questions were followed by a closed-ended question aimed at assessing 

the respondents’ beliefs about whether they are able to file for free: “You may have 

already said this above, but please tell us again, which of the following best describes 

your understanding of filing your 2021 income taxes for free using TurboTax online 

software?” (GX303 (Novemsky Expert Report) ¶ 45) (emphasis in original). 

424. Of the Survey Respondents who had not used TurboTax in the previous three years 

(Group A), 52.7% believed that they could use TurboTax for free even though they could 

not. (GX303 (Novemsky Expert Report) ¶¶ 8, 69 & Figure 1; Novemsky Tr. 360-361). 

425. Of the Survey Respondents who had paid to use TurboTax in the last three years (Group 

B), 24.1% believed that they could use TurboTax for free even though they could not. 

(GX303 (Novemsky Expert Report) ¶¶ 8, 70 & Figure 1; Novemsky Tr. 381). 

426. A substantial portion of Survey Respondents who were not eligible for the TurboTax 

Free Edition had the misimpression that they could file their taxes for free with 

TurboTax. (F. 424-425; GX303 (Novemsky Expert Report) ¶¶ 8, 69, 70 & Figure 1; 

Novemsky Tr. 354, 358-359). 

427. To the extent consumers who recently paid for TurboTax believed that they could file for 

free, this provides some indication of the power of “free” messaging, and its potential to 

overcome even the past experiences of those who have previously paid to use TurboTax. 

(GX303 (Novemsky Expert Report) ¶ 70; see also Novemsky Tr. 380 (“So to me, it’s 

testament to the power of the marketing.”)). 

428. Disclaiming a free claim may be particularly difficult because such claims are powerful 

and consumers are drawn to them. (GX749 (Novemsky Rebuttal Expert Report) ¶¶ 143-

144; Novemsky Tr. 1769). 

429. Consumers are familiar with free online products and services that are free for all 

consumers. For example, there are free music streaming platforms that are free for all 

consumers, but that include advertisements, with consumers able to upgrade to a paid 
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version to avoid those advertisements. Intuit does not have a version of TurboTax that is 

free for all taxpayers. (See GX749 (Novemsky Rebuttal Expert Report) ¶¶ 246-248). 

430. The Novemsky Survey included a question, asking in relevant part: “In some of its 

advertisements, TurboTax mentions ‘simple U.S. returns.’ Do you think that your 2021 

income tax return meets TurboTax’s definition of a ‘simple U.S. return’?” (GX303 

(Novemsky Expert Report) Appendix E at 10 (emphasis in original)).

431. None of the Survey Respondents had a 2021 income tax return that met TurboTax’s 

definition of a “simple tax return.” (F. 403). 

432. Of the Survey Respondents who had not used TurboTax in the previous three years 

(Group A), 55% believed that they had a “simple U.S. return.” (GX303 (Novemsky 

Expert Report) ¶¶ 10, 85 & Figure 3; Novemsky Tr. 373-374). 

433. Of the Survey Respondents who had paid to use TurboTax in the last three years (Group 

B), 28.6% believed that they had a “simple U.S. return.” (GX303 (Novemsky Expert 

Report) ¶ 85 & Figure 3). 

434. A substantial portion of Survey Respondents believed that their returns met TurboTax’s 

definition of a “simple U.S. return.” (F. 432-433; GX303 (Novemsky Expert Report) 

¶¶ 10, 83; Novemsky Tr. 354, 373). 

435. The analysis of the results in the Novemsky Survey (F. 424-425, 432-433) was consistent 

with guidelines for survey research offered in litigation that are set forth in the Federal 

Judiciary Center’s “Reference Guide on Survey Research” and articulated in the Manual 

for Complex Litigation. (GX303 (Novemsky Expert Report) ¶ 5). 

436. The use of the phrase “simple returns” is an ineffective disclosure because it fails to 

convey to consumers that they may not qualify in a manner that is consistent with 

TurboTax’s qualification criteria and does not cure the false impression that they can file 

for free with TurboTax. (GX749 (Novemsky Rebuttal Expert Report) ¶ 250; Novemsky 

Tr. 373-375 (discussing GX486 (Complaint Counsel) and GX855 (Complaint Counsel – 

iSpot.tv)) (“Q. And in your opinion, how effective is the disclaimer for ‘simple returns 

only?’ A. In my opinion, it’s not very effective, because as my survey data show, many 

people who do not have simple returns, as TurboTax is using the phrase, think they have 

simple returns. So telling them it’s only for simple returns doesn’t cure the false 

impression that they think they can file for free with TurboTax. Q. Why else are the 

disclaimers we just looked at not effective? A. Well, the other part of it is having to find 

them. So as you saw, they were in small print in the TV ads, shown only for a few 

seconds right at the end, not the exciting part of the ad that’s going to get people to turn 

their heads to the screen. And on the website, again, in small print under much bigger 

claims about free.”)). 

437. The phrase “simple returns” suggests a standard for consumers to determine the meaning 

of the phrase for themselves, and because the word “simple” has a pre-existing meaning, 
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consumers can ask themselves, “Is my tax return simple” and answer “yes” using their 

own pre-existing definition of “simple.” (GX303 (Novemsky Expert Report) ¶ 87).

438. Consumers are more likely to answer “yes” to the question of whether their tax returns 

are simple because motivated reasoning, wishful thinking, and optimistic bias will drive 

many consumers to give themselves the answer that they perceive is advantageous for 

them. (GX303 (Novemsky Expert Report) ¶ 87).

439. Consumers are likely to have a preconceived notion as to what “simple” means, 

particularly in the context of their taxes. (GX749 (Novemsky Rebuttal Expert Report) 

¶ 223).

b. Other Relevant Novemsky Opinions

440. People tend to be cognitive misers, meaning they constantly try to conserve mental 

energy, expending it only when motivated to. (GX749 (Novemsky Rebuttal Expert 

Report) ¶ 223).

441. For cognitive misers, the tendency to minimize cognition may reveal itself in a tendency 

to assume that TurboTax’s use of “simple” matches the consumer’s own understanding. 

(GX749 (Novemsky Rebuttal Expert Report) ¶ 223).

442. Intuit’s placement of a fuller disclaimer behind a “simple returns” hyperlink made it 

unlikely that consumers would reach the disclaimer. (GX749 (Novemsky Rebuttal Expert 

Report) ¶ 227; Novemsky Tr. 535, 1768).

443. Since consumers tend to be cognitive misers, they are unlikely to click on a hyperlink or 

conduct further research when they think they know what a “simple return” is and are 

under a pre-existing misimpression that they have one. (GX749 (Novemsky Rebuttal 

Expert Report) ¶¶ 223, 227).

444. Hyperlinks are unlikely to be sufficient for presenting important information like 

eligibility criteria because they require more action than simply reading a description of 

“simple returns” on the current webpage, and consumers are even less likely to process 

such information when it is relegated to a hyperlink. (GX749 (Novemsky Rebuttal Expert 

Report) ¶ 227).

445. Buy-one-get-one or BOGO offers refer to bundles of products and are thus not applicable 

to consumers’ perceptions of the advertisement of a standalone product as a free product. 

(GX749 (Novemsky Rebuttal Expert Report) ¶ 247).
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2. Intuit’s Market Research

a. Copy Testing

446. Intuit has conducted copy testing of advertising, which involves presenting 

advertisements (the “copy”) to individuals that Intuit has determined are in its target 

market. The purpose of the copy testing is to evaluate how a particular message or idea is 

resonating. Intuit has commissioned copy testing on its TurboTax television 

advertisements in the regular course of business to understand consumer perception of 

and consumer reaction to the advertisements. (Ryan (Intuit) Tr. 701, 723, 735; Hauser Tr. 

880). 

447. Copy testing was conducted for Intuit in September 2020, in advance of the TY 2020 

filing season (the “TY20 Campaign Copy Testing”), by Ipsos, a market research and 

consulting firm. (GX460 (Intuit); Ryan (Intuit) Tr. 735-740, 821-825; see also Novemsky 

Tr. 364-366, 499-508; Hauser Tr. 876-891). 

448. The survey population for the TY20 Campaign Copy Testing consisted of taxpayers who 

(1) had filed taxes the previous year, (2) considered themselves the tax decision maker 

for their household, and (3) were between the ages of 18 and 49. (GX460 (Intuit) at CC00009537; Ryan (Intuit) Tr. 736). 

449. The TY20 Campaign Copy Testing’s survey population was divided into one control 

group and four test groups. Each group had roughly 200 participants. (GX460 (Intuit) at 

CC-00009563). The control group was shown only the TurboTax brand name and was 

not shown any TurboTax advertisements. (GX460 (Intuit) at CC-00009537; Hauser Tr. 

878). The test groups were shown, within a cluttered multimedia environment, one of 

four TurboTax Free Edition advertisements that were being considered for the TY 2020 

filing season. Each of the tested advertisements was a version of one of the television 

advertisements created in connection with Intuit’s “free, free, free” marketing campaign, 

in which nearly every word in the advertisement consisted of the word “free”: 

“Auctioneer,” “Dance Workout,” “Young Love,” and “Spelling Bee” (“copy test 

advertisements”). (GX460 (Intuit) at CC-00009538-541; Ryan (Intuit) Tr. 735, 738-739; 

see also Hauser 878-879).

450. One of the four copy test advertisements used in the TY20 Campaign Copy Testing was a 

version of the Spelling Bee advertisement from TY 2018 similar to that described in

F. 160-161, which included written disclosures on the final screens of the advertisement 

similar to those described in F. 162-163. The other three copy test advertisements, 

Auctioneer, Dance Workout, and Young Love, did not include any written disclosures, 

such as those contained in the final screens of the advertisements described in F. 179, 

185. (Ryan (Intuit) Tr. 736-738; see also RX1496 (Bennett (WK) Decl.) ¶¶ 5-7).

451. After exposure to either the TurboTax brand name or one of the copy test advertisements, 

the TY20 Campaign Copy Testing participants were asked whether they agreed with a 
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variety of brand attributes of TurboTax, including whether TurboTax “Allows me to file 

my taxes for free.” (GX460 (Intuit) at CC-00009563; Ryan (Intuit) Tr. 738-739).

452. After exposure to the TurboTax brand name, 33% of the control group in the TY20 

Campaign Copy Testing were reported as agreeing with the statement that TurboTax 

“Allows me to file my taxes for free.” (GX460 (Intuit) at CC-00009563; Ryan (Intuit) Tr. 

739).

453. After exposure to the copy test advertisements, between 45% and 57%11F

12 of the test group 

in the TY20 Campaign Copy Testing were reported as agreeing with the statement that 

TurboTax “Allows me to file my taxes for free,” an increase from the 33% reported for 

the control group, which had only been exposed to the TurboTax brand name. (GX460 

(Intuit) at CC-00009563; Ryan (Intuit) Tr. 740). The report on the TY20 Campaign Copy 

Testing noted that these test group results were “[s]ignificantly different from” the 

control group. (GX460 (Intuit) at CC-00009563).

454. The executive summary of the results of Intuit’s TY20 Campaign Copy Testing 

concluded in part: “Consistent, unwavering use of the word ‘free’ throughout captivates 

viewers as they make sense of the bizarre single word worlds” and “[t]he promise of a 

free offer was enticing for many viewers – and differentiated from other brands within 

the category – which likely contributed to the intrigue to want to trial.” (GX460 (Intuit) at 

CC-00009543). 

455. Advertisement copy testing conducted for Intuit in December 2018 by System1 Research 

(the “TY18 Copy Testing”) tested a draft of the Spelling Bee advertisement that did not 

include any final screen disclosures, such as those included in the advertisement 

described in F. 162-163 (“Spelling Bee copy test advertisement”). (GX340 (Intuit) at CC00006857, 6885; Ryan (Intuit) Tr. 725).

456. The survey population for the TY18 Copy Testing consisted of taxpayers who (1) were 

between the ages of 21 and 49, (2) considered themselves the partial or full household 

decision maker for tax returns, and (3) earned under $150,000 income. (GX340 (Intuit) at 

CC-00006845; Ryan (Intuit) Tr. 724).

457. The results of the TY18 Copy Testing showed that 73% of the 250 survey respondents 

took away from the Spelling Bee copy test advertisement the message: “That i [sic] can 

file my taxes for free.” (GX340 (Intuit) at CC-00006857; Ryan (Intuit) Tr. 725).

458. The summary of the TY18 Copy Testing concluded in part: “About half of viewers take 

away the ‘free’ offering in Spelling Bee . . . .” (GX340 (Intuit) at CC-00006883).

12 The rate at which survey respondents believed they could file their taxes for free was 48% for the Spelling Bee 

advertisement that was tested and 57%, 45%, and 45% respectively for the Auctioneer, Dance Workout, and Young 

Love advertisements that were tested.
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459. The TY18 Copy Testing showed that the advertisements tested, including the Spelling 

Bee copy test advertisement, “communicate the parent brand, TurboTax well, however, 

only about ~5% take away the sub brand (TurboTax Free, TurboTax Live).” (GX340 

(Intuit) at CC-00006849 (emphasis in original); see also Ryan (Intuit) Tr. 817-818). 

460. The TY18 Copy Testing showed that for the advertisements tested, including the Spelling 

Bee copy test advertisement, “[m]ost viewers can recall TurboTax, but only a handful 

mention the specific product name” when asked “Which brand do you think this ad was 

for?” (GX340 (Intuit) at 00006856). 

b. Other Market Research

461. A 2019 marketing research report conducted by Intuit evaluating consumer perception 

found that “[f]ree has been a key lever to drive double digit growth” and showed that 

49% of consumers were confident that TurboTax Free Edition is “truly free.” (RX597 

(Intuit) at INTUIT-FTC-PART3-000601649, 1665). 

462. An Intuit study designed to measure brand attributes and “awareness of free” from midseason TY 2018 showed that 22% of consumers were confident that TurboTax Free 

Edition is free. (RX595 (Intuit) at FTC-PART3-000602711, 2714, 2725). 

463. Intuit developed a Go-to-Market White Paper for fiscal year 2019 that includes 

recommendations for how to take Intuit’s products to market, including its 

communication plan, pricing activities, and the way Intuit targets its products (“FY’19 

GTM White Paper”). (Johnson (Intuit) Tr. 647-648 (referencing RX49 (Intuit) also 

admitted as GX428 (Intuit)); GX145 (Berger (Intuit) Dep.) 125-127 (“[E]very team 

cross-functionally provides some input” on the FY’19 GTM White Paper, and it is 

designed to provide a detailed view of Intuit’s “go-to-market plans for fiscal year 

2019.”)). 

464. The FY’19 GTM White Paper, in the context of discussing Intuit’s “free, free, free” 

advertising campaign strategy, acknowledged: “In every case, the viewer cannot miss the 

message, that filing your taxes with TurboTax Free is “‘Free. Free free free, free.’” 

(GX428 (Intuit) at CC-00007711). 

465. The FY’19 GTM White Paper recommended, as a key strategy to “Win in Free,” to have 

“a clear and compelling FREE offering and messaging” and to “[l]ead with Free to raise 

heads and drive traffic and acquisition across digital, mobile, [and] social [channels].” 

(GX428 (Intuit) at CC-00007716). 

466. The FY’19 GTM White Paper includes a recommendation to “[u]se top-consideration 

driver to reinforce ‘you can file for free’” and a recognition that 

(GX428 

(Intuit) at CC-00007740). 
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467. A Go-to-Market White Paper for fiscal year 2018 developed by Intuit specifically 

addressed consumer skepticism surrounding free tax preparation offers and made 

recommendations for how to overcome it, stating under a section titled Drive 

Believability of TurboTax Free: “Consumer testing and insights continue to reveal high 

levels of skepticism that tax prep can be truly free regardless of the brand, but especially 

for TurboTax given our position in market and focus on monetization. . . . [I]ncorporating 

the word ‘guaranteed’ into the offering and changing the name from Federal Free Edition 

to Free Edition will be levers we explore to reduce that skepticism. . . . Customer research 

indicates that we can increase believability of our truly Free offering with the addition of 

‘Guaranteed’.” (RX578 (Intuit) at INTUIT-FTC-PART3-000601557). 

468. Intuit’s realization that “free” is compelling and attracts customers is demonstrated in its 

marketing strategy documents. (E.g., GX57 (Intuit) at CC-00000646 (2014 marketing 

strategy document finding that “Free/Free offer is compelling enough to drive 

considerable (1.2M) incremental customer growth”); GX403 (Intuit) at CC-00007485 

(noting initiative to “[e]volve free messaging and continue to leverage it to raise heads”); 

GX457 (Intuit) at CC-00009340 (“Lead with Free to raise heads and drive traffic and 

acquisition across digital, mobile, social to drive commercial free.”)).

469. Intuit’s awareness of the impression that the “free” advertisements would leave with 

consumers is demonstrated in the March 18, 2020 presentation developed by the 

advertising agency Wieden+Kennedy for Intuit titled 

• 

• 
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• 

• 

470. Mary Ann Somers, while Senior Vice President and Chief Growth Officer of Intuit’s 

consumer group, was interviewed on the September 20, 2019 episode of the podcast 

“Renegade Thinkers Unite.” (GX148 (Sommers (Intuit) Dep.) at 34-35, 46-48; GX357 

(Complaint Counsel) (transcript of podcast featuring Somers); GX358 (Complaint 

Counsel) (audio recording of podcast featuring Somers)). During the interview, Somers 

said the following with regard to the TurboTax “free free free” campaign: 

I’ll start with the part that really was the aha moment, and that was the insight. 

We know a lot about our free customer. We know what their journey is, a lot 

of things. But the key insight for us was, when you start talking about free, 

that’s what people hear. They hear free. You can say a lot of other things, but 

what they hear is free. We said, ”Huh, well, if that’s the truth, then how do we 

create a campaign that builds upon that truth?” And that’s the campaign that 

you saw. 

(GX357 (Complaint Counsel); GX358 (Complaint Counsel) at 26:06-26:36 (audio)).

471. A 2019 Intuit study showed that of consumers leaving TurboTax, stated that price 

was a reason. (RX765-A (Intuit) at 7).

-
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3. Consumer Complaints and Feedback Received by Intuit 

472. In 2019, Intuit was aware of approximately 500 consumer online posts on various 

platforms regarding eligibility for taxpayers to file for free using TurboTax, with 69% of 

those posts expressing a “negative sentiment,” including about being required to upgrade 

to a paid TurboTax product when they had previously been able to file with TurboTax for 

free. (GX415 (Intuit) at CC-00007582-583). 

473. Based on a customer defection study conducted by Intuit regarding TY 2018, Intuit was 

aware in 2019 that dissatisfaction with price increased significantly as a reason for 

customers leaving TurboTax in TY 2018. For customers who had previously used the 

free product but did not return, reasons cited included “want[ing] to do” their taxes “for 

free,” “too many unexpected fees” and “having to upgrade” when preparing their return. 

(RX765-A (Intuit) at 17).

474. In an Intuit TY 2020 Net Promoter Score study, Intuit customers reported “hidden costs 

that were not expected” as a reason not to recommend TurboTax online filing. Comments 

included, “They always say it’s free [] but it’s never free. They always charge for 

something” and “It basically tricks you into having to pay to file your taxes because 

you’re never qualified for the free return.” (GX665 (Intuit) at CC-00014561).

475. Consumers can contact Intuit directly through Intuit’s customer success team and/or 

Intuit’s customer care team by phone or chat. (GX158 (Berger (Intuit) Dep.) at 7-8). 

476. When customers are connected with an Intuit customer agent, a record of the contact is 

created in Salesforce, Intuit’s customer relationship management (“CRM”) database, by 

the customer agent. (GX158 (Berger (Intuit) Dep.) at 8-9). The information entered into 

Salesforce includes “the name of the customer, what product they’re using, what they 

may be contacting [Intuit] about,” “notes captured about the interaction” by the customer 

agent, and any resolution. (GX158 (Berger (Intuit) Dep.) at 9).

477. Intuit analyzes the information that comes into Salesforce for trends in consumer 

complaints on a weekly basis. (GX158 (Berger (Intuit) Dep.) at 15). 

478. Intuit’s CRM data from 2021 includes a customer review with the text “Why are you 

advertising free when by the end of doing my taxes with you it cost me $140! I will add 

this to my review of this product??” (GX859 (Intuit) at CC-00015471, row 39720, 

column V).

479. Intuit’s CRM data includes a customer review with the text “PreAuth: Why am I being 

charged almost $120. For a simple w-2 tax return. Nothing else I’m claiming. I started 

with the free service then can’t process any further until i except the $70 upgrade. That’s 

false advertisement of free.” (GX859 (Intuit) at CC-00015471, row 40777, column C). 

480. Intuit’s CRM data includes a customer review with the text “Customer is insulted that 

TurboTax advertises Free and then when someone enters the[i]r[] info system pushed 
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them into other packages. It was explained to cx that the system does pick up when other 

features are required that may not be needed. Customer stated because it was not free he 

would find another provider and hung up on agent.” (GX860 (Intuit) at CC-00015472, 

row 8417, column V).

481. Intuit’s CRM data includes a customer review with the text “i want to know why do i 

have to pay to do my taxes it was supposed to be free.” (GX858 (Intuit) at CC-00015470, 

row 24574, column D).

482. Intuit’s CRM data includes a customer review stating that the customer “wants to know 

why it[’]s asking him to pay 90 bucks when his tax return was simple.” (GX857 (Intuit) 

at CC-00015469, row 1423, column D). 

483. Intuit’s CRM data includes a customer review with the text “Why are you charging me

...this is supposed to be FREE.” (GX862 (Intuit) at CC-00015474, row 60802, column 

D).

484. Intuit uses a third-party vendor called Bazaarvoice to capture and store customer reviews. 

These reviews are available to be viewed by Intuit’s marketing team and might also be 

posted on the TurboTax website. (GX149 (Crosby (Intuit) Dep.) at 42-43; Johnson 

(Intuit) Tr. 666-667). 

485. The data stored in the Bazaarvoice database includes the product name, the relevant tax 

year, the method by which the customer filed their taxes the prior year, and life changes 

that would impact the customer’s tax situation. (GX149 (Crosby (Intuit) Dep.) at 92-95). 

486. In order for a consumer review and accompanying data to be captured in the Bazaarvoice

database, the customer must complete filing their taxes using a TurboTax product.

(GX149 (Crosby (Intuit) Dep.) at 42-43, 47). 

487. The Excel file “TY21 Bazaarvoice Customer Reviews Data” shows customer reviews

collected by Bazaarvoice and includes an overall customer rating for the product, a 

review ID, a review title, and review text, for customers who filed their TY 2021 taxes 

using a TurboTax product and completed the Bazaarvoice survey. (See generally RX816 

(Intuit) INTUIT-FTC-PART3-000490341 (also admitted into the record as GX475) 

(hereafter “Intuit’s TY 2021 customer review data”); see also RX1027 (Deal Expert 

Report) at D-36). 

488. Intuit’s TY 2021 customer review data contain numerous reviews from customers 

expressing dissatisfaction over expecting to be able to file for free with TurboTax, 

including based on TurboTax advertising, but being unable to do so. (RX816 (Intuit); 

summarized in GXD006). Representative samples of such reviews are set forth below in 

F. 489-507.

489. Intuit’s TY 2021 customer review data includes a customer review containing the 

statements “TurboTax is a dec[ei]ving company” and “Your TV commercials are a big 
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lie, this company should be put out of business for deceptive practices. Free, free, free, 

yes right $154.00 to file this return, Free, Free, free.” (RX816 (Intuit) at row 272983, 

columns A, E, P).

490. Intuit’s TY 2021 customer review data includes a customer review containing the 

statements “TURBO TAX ISNT FREE, EVER!” and “ADVERTISES FREE, FREE, 

FREE, BUT ITS ACTUALLY FEE, FEE, FEE!” (RX816 (Intuit) at row 15850, columns 

A, E, P).

491. Intuit’s TY 2021 customer review data includes a customer review containing the 

statements “Horrible” and “They advertise $0 to file a basic W2 and end up charging 

you!” (RX816 (Intuit) at row 150070, columns A, E, P).

492. Intuit’s TY 2021 customer review data includes a review containing the statements 

“Disappointed” and “I would give a higher review, however they keep promoting that it 

is free free free and yet it is NOT NOT NOT.” (RX816 (Intuit) at row 44033, columns A, 

E, P).

493. Intuit’s TY 2021 customer review data includes a review containing the statements “NOT 

TRUL[]Y FREE AS ADVERTISED” and “NOT FREE AS ADVERTISED,,, THE 

LAST TIME I USED TURBO TAX FEDERAL WAS FREE THIS TIME IT WAS NOT 

WHICH I AM NOT HAPPY ABOUT .. THE COMMERCIALS ADVERTISE FREE 

FREE FREE FREE THIS IS B***s****.” (RX816 (Intuit) at row 120171, columns A, E, 

P). 

494. Intuit’s TY 2021 customer review data includes a review containing the statements “more 

bullsh*T” and “commercial after commercial telling you its free its free, go to hell with 

that.” (RX816 (Intuit) at row 75870, columns A, E, P).

495. Intuit’s TY 2021 customer review data includes a review containing the statements “I 

would of given ZERO stars!!!!!!!!!” and “Your COMMERCIALS in the STATE of 

MINNESOTA says FREE FREE FREE FREE FREE. YOU CHARGE FOR FILING!!! 

FALSE ADVERTISEMENT!!!!!! YOU NEED TO REFUND ME FOR 

FILING!!!!!!!!!!!!!!!!!! STOP LYING about being FREE!!!!!!!!!!!!!!!!!!!!!!!!!” (RX816 

(Intuit) at row 124340, columns A, E, P).

496. Intuit’s TY 2021 customer review data includes a review containing the statements

“FEES!” and “Turbo Tax claims I can file for free but that is not true as I try every year 

and it does not allow any option to file for free! Very disappointed with Tu[r]bo Tax bait 

and switch tactics and their abuse of taking advantage of the hard-working poor.” 

(RX816 (Intuit) at row 30132, columns A, E, P).

497. Intuit’s TY 2021 customer review data includes a review containing the statements

“Misleading” and “This process is very misleading. It promotes free,free,free until its 

t[i]me to checkout and then all of a sudden there is a fee that was more than the return 

itself.” (RX816 (Intuit) at row 263327, columns A, E, P).
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498. Intuit’s TY 2021 customer review data includes a review containing the statements “Y’all 

are thieves,” and “Turbo Tax will help you get the biggest return! and then they will take 

half of it because they charge you for so much. You can file for free! LOL JK you stupid 

fools should be Turbo Taxes actual slogan.” (RX816 (Intuit) at row 255488, columns A, 

E, P).

499. Intuit’s TY 2021 customer review data includes a review containing the statements

“Turbo Tax’s thing is that it is FREE. This is the second year I’ve filed my own taxes and 

they charged me almost 200$ for filing my federal taxes! Complete scam!!!” (RX816 

(Intuit) at row 182906, columns A, E, P).

500. Intuit’s TY 2021 customer review data includes a review containing the statements 

“Probably won’t use Turbotax again” and “I got told it was a free upgrade to Turbotax 

Live on the website itself (it prompted that it was free) and from an ad on T.V. I still had 

to lose half of my refund because it was a complete lie.” (RX816 (Intuit) at row 265027, 

columns A, E, P).

501. Intuit’s TY 2021 customer review data includes a review containing the statements “Free 

to file my a55” and “Such false advertising. You state free for simple returns, but over 

$100 later, that is not the case at all. Every year it is the same crap. False advertising. I 

will not use you again moving forward.” (RX816 (Intuit) at row 83380, columns A, E, P).

502. Intuit’s TY 2021 customer review data includes a review containing the statements “Your 

commercials say that you[’r]e free” and “Every year I see the commercials that say you 

are a free tax filing service yet you charge me over $100 to file every year. If it is not free 

for a broke college student who is in the lowest tax bracket, then who exactly is it free 

for?” (RX816 (Intuit) at row 187204, columns A, E, P).

503. Intuit’s TY 2021 customer review data includes a review containing the statements

“Overall, TurboTax is great and easy to use. However, my only complaint was that you 

originally advertise the tax program to be free. Once you reach the end of the tax form 

however, you come to find out that it is indeed not free, but is going to cost at least a 

minimum of $39 or more. So that’s not cool. False advertising if you ask me.” (RX816 

(Intuit) at row 116550, columns A, E, P).

504. Intuit’s TY 2021 customer review data includes a review containing the statements “Ah 

it’s not that bad, not free thou[gh] like they said in the commercial.” (RX816 (Intuit) at 

row 197881, columns A, E, P).

505. Intuit’s TY 2021 customer review data includes a review containing the statements “It 

advertises as FREE. Why am I paying for it???” (RX816 (Intuit) at row 40791, columns 

A, E, P).
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506. Intuit’s TY 2021 customer review data includes a review containing the statements 

“Lies” and “It[’]s an easy site to use but they have unexpected fees when the commercial 

clearly say free, IT[’]S NOT FREE!!” (RX816 (Intuit) at row 35974, columns A, E, P).

507. Intuit’s TY 2021 customer review data includes a review containing the statements “It’s 

not free, has never been free, stop lying about how it’s free.” (RX816 (Intuit) at row 

123687, columns A, E, P).

4. Consumer Sentinel Complaints

508. Between January 1, 2016, and March 28, 2022, the Consumer Sentinel Network 

(“Sentinel”), the FTC’s consumer complaint database, received consumer complaints 

concerning TurboTax. Between 120 and 228 of these Sentinel complaints raised issues 

encompassed by the deceptive advertising allegations in the Complaint. (See RX277

(Intuit) at 3 & Attachment A (summarizing GX502 & GX503 (Complaint Counsel) 

(reporting 228 relevant Sentinel complaints received Jan. 1, 2016 to Mar. 28, 2022); 

Golder (Intuit) Tr. 1199-1201, 1207-1208 (addressing his analysis of Sentinel complaints 

produced by Complaint Counsel and finding 120 relevant Sentinel complaints in same 

period); see also RX1018 (Golder Expert Report) ¶¶ 71-82)). 

509. Forty-three of the relevant Sentinel complaints referenced in F. 508 were recorded 

between January 1, 2021, and March 28, 2022, and 26 were recorded between November 

1, 2021, and March 28, 2022. (RX277 (Intuit) at 3 & Attachment A (summarizing GX502 

& GX503 (Complaint Counsel)) (Sentinel complaints received Jan. 1, 2016 to Mar. 28, 

2022)). 

510. Of the 26 relevant Sentinel complaints recorded between November 1, 2021, and March 

28, 2022 referenced in F. 508:

a) 26 of 26 consumers indicated that they believed that filing taxes with 

TurboTax would be free;

b) 22 of 26 consumers mentioned advertising about a free TurboTax 

option; and

c) 20 of 26 consumers indicated that they were charged for or paid for 

TurboTax.

(RX277 (Intuit) at 3 & Attachment A (summarizing GX502 & GX503 (Complaint 

Counsel)) (Sentinel Complaints received Jan. 1, 2016 to Mar. 28, 2022)). 

5. Consumer Testimony

511. Consumer testimony supports a conclusion that consumers’ expectations that they can

file for free with TurboTax is an important factor in deciding to use TurboTax. (See, e.g., 

GX125 (Beck (Consumer) Dep.) at 55 (testifying that TurboTax free advertising was “the 
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key message that brought me to TurboTax in the first place”); see also GX138 (Adamson 

(Consumer) Dep.) at 42, 56, 57; GX128 (Benbrook (Consumer) Dep.) at 55; GX124 

(Bodi (Consumer) Dep.) at 31-33; GX139 (Derscha (Consumer) Dep.) at 76; GX137 

(DuKatz (Consumer) Dep.) at 27-28, 82-83; GX142 (Keahiolalo (Consumer) Dep.) at 76-

77; GX123 (Lee (Consumer) Dep.) at 53-54; GX135 (Phyfer (Consumer) Dep.) at 79-80, 

88-90, 104-105; GX130 (Tew (Consumer) Dep.) at 52-54)). 

512. Consumer testimony supports a conclusion that cost is an important factor in deciding to 

use a tax filing service. (GX138 (Adamson (Consumer) Dep.) at 56; GX125 (Beck 

(Consumer) Dep.) at 15, 27, 30; GX128 (Benbrook (Consumer) Dep.) at 22; GX139 

(Derscha (Consumer) Dep.) at 41, 88; GX132 (Dougher (Consumer) Dep.) at 41-42; 

GX137 (DuKatz (Consumer) Dep.) at 74-75, 80-82; GX134 (Hobson (Consumer) Dep.) 

at 20; GX142 (Keahiolalo (Consumer) Dep.) at 42, 61, 77; GX135 (Phyfer (Consumer) 

Dep.) at 54, 103, 109; GX130 (Tew (Consumer) Dep.) at 53-54)). 

513. Consumer testimony supports a conclusion that TurboTax’s “free” advertising claims 

were memorable and were retained by consumers. (GX138 (Adamson (Consumer) Dep.) 

at 55-56 (testifying that TurboTax free advertising was “ubiquitous”); GX125 (Beck 

(Consumer) Dep.) at 22 (“I’m not sure if there was any one particular thing that I 

remember other than the ads that they started doing where it would just say the word 

‘free’ over and over and over again.”), 23, 30, 55; GX128 (Benbrook (Consumer) Dep.) 

at 53-55 (testifying that all he remembered from TurboTax advertisements was “free” and 

“zero dollar” “repeated numerous times across all ads”); GX139 (Derscha (Consumer) 

Dep.) at 58-59 (“Q: [W]hat TurboTax advertisements did you see in 2019 specifically?

A: Oh, lord, there were several. There were several on Facebook, several of them on 

YouTube . . . [A]t that point in time they were all over the place.”), 60 (testifying that 

TurboTax advertisements “caught [her] attention”); GX132 (Dougher (Consumer) Dep.) 

at 35-36 (testifying that he “thought [TurboTax] was free for everybody”); GX137 

(DuKatz (Consumer) Dep.) at 29-30 (testifying to being able to “vividly” recall a 

TurboTax advertisement “where everyone talks by just saying the word ‘free’”), 93-94;

GX142 (Keahiolalo (Consumer) Dep.) at 25 (“Q: “What do you know about TurboTax?

A. TurboTax, it’s free. That’s all I know. They advertise as free. That’s all I know.”), 26, 

32-33, 42; GX123 (Lee (Consumer) Dep.) at 54 (testifying that his initial impression 

from advertisements was that TurboTax was “simple, easy and free” to file); GX135 

(Phyfer (Consumer) Dep.) at 79-82; GX141 (Robinson (Consumer) Dep.) at 41-43; 

GX136 (Schulte (Consumer) Dep.) at 14-15)).

514. Consumer testimony supports a conclusion that many consumers do not understand 

Intuit’s eligibility criteria for TurboTax Free Edition. (GX137 (Dukatz (Consumer) Dep.)

at 19 (“I don’t understand what a simple return is, and no, I don’t understand who would 

qualify for that and under what conditions that would be true. Like, I don’t understand 

who falls into a simple return.”), 56 (testifying that the phrase simple tax returns “has no 

connotation to me because I don’t understand what is and is not a simple tax return”), 64 

(testifying that the phrase “[f]or simple tax returns only” “doesn’t mean anything to me”); 

GX138 (Adamson (Consumer) Dep.) at 44 (testifying that he understood “simple tax 

returns” to mean “if you . . . made under a certain amount of money, that you would not 
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be charged by TurboTax to file your taxes”), 58-59 (“Q: What does simple returns mean 

to you? A. I don’t know exactly. . . .”); GX139 (Derscha (Consumer) Dep.) at 47-48, 

(testifying that she “thought” her “standard tax preparation” was a simple tax return and 

that she “didn’t understand that there [were] different versions of a standard”), 62 

testifying that she “wasn’t aware of the differences between like a simple file or anything 

like that”); GX142 (Keahiolalo (Consumer) Dep.) at 37-38; GX135 (Phyfer (Consumer) 

Dep.) at 66-67 (testifying that she “assumed” that her tax return was a simple tax return),

75-76 (testifying that she understood she had a simple tax return because nothing had 

changed since the previous year “in [her] income”), 92-93; GX141 (Robinson

(Consumer) Dep.) at 41-42, 58-59; GX136 (Schulte (Consumer) Dep.) at 70 (testifying 

that he interpreted “simple tax returns” to mean a “situation where your tax situation’s 

not over[ly] complicated . . . Like essentially you’re not some huge investor” requiring a 

“stack of different documents that you’re going to have to submit)). 

515. Consumers may be reluctant to switch tax preparation providers in the course of 

completing their taxes, particularly after putting in substantial time on their return.

(GX124 (Bodi (Consumer) Dep.) at 33 (testifying that upon reaching “the end” of her 

TurboTax filing and realizing she would be charged, “at that point [she] did not want to 

. . . find another online tax preparer”); GX139 (Derscha (Consumer) Dep.) at 57

(testifying that she did not change tax preparation providers upon reaching the end of her 

filing because “there were circumstances that made it difficult for [her] to have to go 

back through the whole process over again”); GX137 (DuKatz (Consumer) Dep.) at 80-

82; GX138 (Adamson (Consumer) Dep.) at 58 (testifying to having spent between 30 and 

45 minutes entering his tax information on TurboTax before learning he could not file for 

free.)). 

516. One consumer explained his reluctance to switch tax preparation providers in the course 

of completing his taxes after putting in substantial time on his return as follows:

I’d already spent the time. It’s like if you were – Let’s say you ordered 

something from IKEA and you were building, like, a wardrobe, and you spent 

four hours on the wardrobe, and then you realize that you have to go buy 

another piece to do it – to complete it. You’re going to go buy that piece. 

You’re not just going to, like, throw it in the dumpster. Like, it has to be done 

now. (GX137 (DuKatz (Consumer) Dep.) at 80). . . .

It would be like if you bought a plane ticket, you got on an airplane, they flew 

you across the country, and then to leave the airplane, they were like, 

“Actually, it’s $100 to leave the airplane. Otherwise we’re just going to fly 

you back.” And you’re like, “But I already paid for my vacation, like for my 

hotel and stuff,” and they’re like, “You’re going to have to pay the $100 to get 

out of the airplane.” So that’s the way that I would phrase that. (GX137 

(DuKatz (Consumer) Dep.) at 81).

517. Consumer testimony supports a conclusion that consumers do not necessarily perceive or 

understand the significance of color-contrasted hyperlinks on TurboTax’s website. 
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(GX125 (Beck (Consumer) Dep.) at 34-36 (testifying that: she was not aware that blue 

text on a webpage indicates a hyperlink with additional information; and that blue 

hyperlinks for “simple tax returns” on TurboTax’s Products & Pricing page were not 

“obvious” given the small print and other blue colored content on the page)). 

D. Intuit’s TY 2022 Advertising and Website

1. TY 2022 Advertisements 

518. Advertisements placed by Intuit for TY 2022 include “free” filing claims for TurboTax 

products, as well as certain disclosures, described in F. 519-526.

519. Intuit’s TY 2022 video advertisements that include verbal “free” filing claims for 

TurboTax products refer to the filing of “simple returns” for free and audibly state “see if 

you qualify at turbotax.com.” (E.g., RX1444 (Intuit) (“Filing your simple return for free? 

. . . “see if you qualify at turbotax.com.”)). These advertisements also include a final 

screen with written words: “Simple returns only. See if you qualify at turbotax.com” and 

a reference to the specific TurboTax free product, such as TurboTax Free Edition. (E.g.,

RX1445 (Intuit); RX1449 (Intuit); RX1452 (Intuit); RX1547 (Intuit)). 

520. Intuit’s TY 2022 video advertisements for TurboTax Free Edition include text stating, 

“File A Simple Return For Free” and include a final screen referencing TurboTax Free 

Edition, and stating: “Simple returns only. See if you qualify at turbotax.com.” (E.g., 

RX1547 (Intuit) (the “Taxbourine” video advertisement)). The representative screenshots 

are set forth below:
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(RX1547 (Intuit)). 

521. Intuit’s TY 2022 Video Display Advertisements that include free filing claims for 

TurboTax products include written disclosures stating both “Simple tax returns only” and 

“See if you qualify,” and also contain the name and/or logo of the free product being 

advertised – TurboTax Free Edition or TurboTax Live Basic. (RX1421 (Intuit); RX1423 

(Intuit); RX1428 (Intuit); RX1429 (Intuit); RX1430 (Intuit); RX1454 (Intuit); RX1455 

(Intuit); RX1456 (Intuit); RX1457 (Intuit); RX1458 (Intuit); RX1459 (Intuit); RX1460 

(Intuit); RX1461 (Intuit); RX1462 (Intuit); RX1463 (Intuit); RX1464 (Intuit); RX1465 

(Intuit); RX1466 (Intuit); RX1467 (Intuit); RX1468 (Intuit); RX1469 (Intuit); RX1470 

(Intuit); RX1471 (Intuit); RX1472 (Intuit); RX1473 (Intuit); RX1474 (Intuit); RX1475 

(Intuit); RX1476 (Intuit); RX1477 (Intuit); RX1478 (Intuit); RX1479 (Intuit); RX1480 

(Intuit); RX1481 (Intuit); RX1482 (Intuit); RX1483 (Intuit); RX1484 (Intuit); RX1485 

(Intuit); RX1486 (Intuit); RX1487 (Intuit); RX1488 (Intuit); RX1489 (Intuit); RX1480 

(Intuit); RX1481 (Intuit); RX1482 (Intuit); RX1483 (Intuit); RX1484 (Intuit); RX1485 

(Intuit); RX1486 (Intuit); RX1487 (Intuit); RX1488 (Intuit); RX1489 (Intuit)). A 

representative screenshot is set forth below:

✓ turbotax 

Free Edition 

Simple returns onty. See if you qualify at turbotax.com, 
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(RX1421 (Intuit)).

522. Intuit’s TY 2022 Video Display Advertisements for TurboTax products that include

verbal “free” filing claims include a voice-over stating that consumers can file “a simple 

return for free” or that free filing is for “simple returns only.” Video Display 

Advertisements with verbal free claims also state audibly “see if you qualify” at the 

TurboTax website. (RX1421 (Intuit); RX1423 (Intuit); RX1428 (Intuit); RX1429 

(Intuit); RX1430 (Intuit); RX1454 (Intuit); RX1455 (Intuit); RX1456 (Intuit); RX1457 

(Intuit); RX1462 (Intuit); RX1463 (Intuit); RX1464 (Intuit); RX1465 (Intuit); RX1470 

(Intuit); RX1471 (Intuit); RX1472 (Intuit); RX1473 (Intuit)).

523. Intuit’s TY 2022 Non-Video Display Advertisements that include “free” filing claims for

TurboTax products include written disclosures stating “Simple tax returns only. See if

you qualify.” They also contain the name and/or logo of the free product being 

advertised, TurboTax Free Edition or TurboTax Live Basic. (GX730-GX741 (Complaint 

Counsel); RX1419 (Intuit); RX1420 (Intuit); RX1422 (Intuit); RX1424 (Intuit); RX1425

(Intuit); RX1426 (Intuit); RX1427 (Intuit); RX1431 (Intuit); RX1432 (Intuit); RX1433

(Intuit); RX1434 (Intuit); RX1435 (Intuit)). A representative screenshot is set forth 

below:
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(GX734 (Complaint Counsel)).

524. Intuit’s Paid Search Advertisements for TY 2022 that include “free” filing claims for 

TurboTax products include written statements in the subtext, beneath the headline and 

sub-headline, such as, “Free for Simple Tax Returns Only With TurboTax Free Edition” 

and/or “See if you qualify today.” (GX723 (Complaint Counsel); GX724 (Complaint 

Counsel); GX725 (Complaint Counsel); GX726 (Complaint Counsel); GX727 

(Complaint Counsel); GX728 (Complaint Counsel); GX729 (Intuit); RX1436 (Intuit); 

RX1437 (Intuit); RX1438 (Intuit); RX1439 (Intuit); RX1440 (Intuit); RX1442 (Intuit);

RX1443 (Intuit)). A representative screenshot is set forth below:
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 (RX1440 (Intuit)). 

525. Consumers who click on a TY 2022 Paid Search Advertisement for TurboTax Free

Edition or TurboTax Live Basic are taken directly to the TurboTax Free Edition or 

TurboTax Live Basic landing page. (Johnson (Intuit) 595-596; Ryan (Intuit) Tr. 697; 

Rubin (Intuit) 1563-1565). 

526. Intuit’s email advertisements for TY 2022 that include “free” filing claims for TurboTax 

products include written disclosures underneath the offer to file for free, stating 

“TurboTax Free Edition, for simple returns only. See if you qualify.” The

advertisements also include written disclosures stating that “Not all taxpayers” qualify 

and specify certain eligibility qualifications for simple tax returns. (RX1431 (Intuit); 

RX1432 (Intuit); RX1433 (Intuit); RX1434 (Intuit); RX1435 (Intuit)). Representative 

screenshots are set forth below: 

Google free rue taxes onlino X 

Cl .. 0 Vodoos c;J Imagos fJ) Now• e) Books ; Mo,o 

Ab0u1 U30,000,000 r+SUltt (0,$2 r.o,eond$) 

Ad · hUpa•//turbotex Intuit con\lfrtt/ttxts 

Turbo Tax® Official Site - Free Simple Tax Filing Online 

flllng Taxes Is Fast And Easy With Turbo Ta~ Free Edrtlon. SH If You Qualify Todly. Get A 

Jumps-tart On Ywt Tax" Import Your Tax Form ANJ FIie t=« Your Max R~fund Today. 

Free Tax Refund Estimate 

Utt Our T•ll Ctlculttor To Fwwf Out How Much Yov'H G-tt e,ctc Thi• v .. , 

Turbo Tax live® 

C<innec1 Wcth A LIW Tax Exp.en Fo, Tex Adviee And A Final Review 
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(RX1431 (Intuit)). 

 

2. TY 2022 Website 

527. In TY 2022, advertisements for TurboTax free filing offers on the TurboTax home page 

that referred to “simple tax returns only” were adjacent to a color-contrasted hyperlink 

lnTUIT 

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FREE 

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for simple tax returns only 

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stating “see if you qualify.” (RX1263-A; RX1500 (Intuit); RX19 (Intuit); RX20 (Intuit); 

RX21 (Intuit); RX22 (Intuit); RX23 (Intuit); RX24 (Intuit)). A representative screenshot 

is set forth below: 

 (RX1500 (Intuit)). 

528. Since at least August 2022, the TurboTax website has included a “See if you qualify” 

webpage, which contains details on the qualifications for TurboTax’s free tax filing 

products (the “See if you qualify” TurboTax webpage). (RX6 (Intuit); RX1501 (Intuit); 

GX439 (Ryan (Intuit) Decl.) ¶ 39). 

529. The “See if you qualify” TurboTax webpage states, “Simple tax return? You could file 

for free[.] A simple return is one that’s filed using the IRS Form 1040 only, without 

attaching any schedules.” The page further details the tax situations that are and are not 

covered by free TurboTax products, and answers frequently asked questions, such as 

“How does TurboTax make money?” (RX6 (Intuit); RX1501 (Intuit)). 

530. RX1501, shown in part below, is a screenshot of a portion of the TurboTax “See if you 

qualify” webpage from TY 2022: 

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(RX1501 (Intuit)). 

531. RX1532, shown in part below, is a screenshot of the TY 2022 TurboTax Products 

& Pricing webpage. 

If you have a simple tax return, you could be 

eligible to file for $0 

Simple tax retutns are those filed us.og IRS Form 1040 only, with no added complex,ty. 

Only certain tax situations quar.ly. 

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Pf9mium PJodUC1$ and w~ wot.in off9r s,,mplo t.JK filing. W• offer .idditional paid b9netfi1$ that 90 

beyond fil,ng your $1imp&o t;)KOS for froo, but thoy'r,; opbon;i,I. 

When fi~f'ICial situ.ations aren't~ anymo1e (Mte owning a homlt, ha¥ing a child, or ~ing 

,nvestmems), we hope our cu~orners w, II choose to par, to prepa,fe .ind file thetr retuins w,th Turbo T .)x. 
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(RX1532 (Intuit); Rubin (Intuit) Tr. 1570-1571). 

532. A screenshot of the SKU Selector from the TY 2022 TurboTax website Products 

& Pricing page is set forth below: 

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 (RX1532 (Intuit)). 

E. State Settlement

533. The Complaint in this matter was issued after an investigation into Intuit’s acts and 

practices conducted by the Commission’s Bureau of Consumer Protection staff together 

with the offices of several state attorneys general (the “investigation”). The investigation 

began in May 2019. (See GX312 (Complaint Counsel) ¶¶ 3-9, 12-18, 20-26 & 

Appendix). 

534. During the course of the investigation into Intuit’s advertising practices and settlement 

negotiations prior to the issuance of the Complaint, Intuit continued making “free” claims 

in its advertising and airing advertisements from its “free, free, free” campaign. On 

March 24, 2022, Intuit’s general counsel met with FTC Chair Lina Khan to discuss the 

FTC’s concerns regarding Intuit’s advertising. After the meeting, Intuit discontinued its 

“free, free, free” video advertising campaign. (GX438 (Intuit) ¶ 16; see GX Summary 

001 (Complaint Counsel) at “Ads w-Program Count” (summarizing television

advertisement dissemination data produced by Intuit for television advertisements that 

made free claims principally in calendar years 2021 and 2022); GX Summary 002 

(Complaint Counsel) at “Summary-Online_Ads” (summarizing online advertisement

dissemination data produced by Intuit for online advertisements that made free claims in 

calendar years 2021 and 2022)). 

535. On May 6, 2019, the State of California, by and through the Los Angeles city attorney, 

filed a complaint against Intuit, seeking injunctive relief, restitution, and civil penalties, 

alleging that Intuit’s free tax filing advertising was false or misleading under California’s 

Unfair Competition Law (Bus. & Prof. Code §§ 17200 et seq.). (GX873 (Complaint 

Counsel), e.g., ¶ 79c (alleging Intuit “advertis[ed] ‘FREE Guaranteed’ tax filing services 

Let's find the right tax solution for you 

~ w a '1 & 1..-,,.k,nu.-a, l¥1:1Mllr.bf..!JNAID_, ltinoa]llt l!lln<llill!· u dtd,tt.:i:n, ada.dh fffjb-.M.b'IM 1....-.dw.21 ,p,w1 .... 'C",lffl .. hcaii ~ 

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"""""fflf'fl-n 1.....,o,1,.~ 

- -.. - ~·-- ,-1 ... ...,,,.,,..i --
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when in fact only a small percentage of consumers are able to complete their tax returns 

for free . . . .”)). 

536. On September 6, 2019, the State of California, by and through the Santa Clara County 

Counsel, filed a complaint against Intuit, seeking injunctive relief, restitution, and civil 

penalties, alleging that Intuit’s free tax filing advertising violated California’s False 

Advertising Law. (GX874 (Complaint Counsel), e.g., ¶ 75a (alleging that Intuit “[f]alsely 

represent[ed] in numerous television advertisements that if taxpayers used TurboTax Free 

Edition they would be able to file for free, including in an ad campaign using the tagline: 

‘Free, free free free,’” and “[f]alsely represent[ed] in extensive online advertisements that 

if taxpayers used the TurboTax Free Edition they would be able to file for free”)). 

537. On September 13, 2019, a consolidated class action complaint was filed against Intuit in 

the United States District Court for the Northern District of California, captioned as In re 

Intuit Free File Litigation (“Consolidated Class Action Complaint”), alleging, among 

other things, that Intuit’s free tax filing advertising was deceptive. (GX875 (Complaint 

Counsel) (publicly available from N.D. Cal.) ¶ 83).

538. On May 4, 2022, Intuit entered into a settlement agreement with the attorneys general of 

all 50 states and the District of Columbia to resolve an investigation by the attorneys 

general into Intuit’s marketing, advertising, promotion, and sale of certain online tax 

preparation products and whether Intuit’s conduct constituted deceptive or unfair 

business acts or practices in violation of the states’ consumer protection laws. (RX76 

(Intuit) (Assurance of Voluntary Compliance); RX261 (Intuit) (June 25, 2022 Consent 

Order entered in the Los Angeles County Superior Court settling case with the State of 

California)). The Assurance of Voluntary Compliance and the Consent Order contain 

substantively similar terms (collectively the Consent Order and the settlement agreement 

are referred to herein as the “State Settlement”).

539. The State Settlement requires Intuit to comply with the consumer protection laws of each 

state and any amendments to those laws, regulations, and rules that may be adopted. 

(RX261 (Intuit) at 6; RX76 at 18). 

540. The State Settlement prohibits Intuit and “Intuit’s officers, agents, employees, and 

attorneys, and all other persons in active concert or participation with any of them, who 

receive actual notice of this Judgment, whether acting directly or indirectly, in connection 

with promoting or offering any online tax preparation products” from, among other 

prohibitions, misrepresenting “expressly or by implication” that consumers can “file their 

taxes for free with the TurboTax Free Edition Product when that is not the case” or “[a]ny 

other fact material to consumers concerning any tax preparation product or service, such 

as the price; total cost; any material restrictions, limitations, or conditions; or any 

material aspect of its performance, efficacy, nature, or central characteristics.” (RX261 

(Intuit) at 6-7; RX76 (Intuit) at 18-19).
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541. The State Settlement prohibits Intuit from publishing “in any medium (1) its ‘free, free, 

free’ Video Advertisements . . . and (2) Video Advertisements that are substantially 

similar in their repetition of the word free.” (RX261 (Intuit) at 8; RX76 (Intuit) at 21).

542. The State Settlement requires certain disclosures, described in F. 543-550, in connection 

with the advertising of any tax preparation products as “free, whether directly or 

indirectly.” (RX76 (Intuit) at 19-20; RX261 (Intuit) at 7).

543. The State Settlement requires in any “non-Space-Constrained Advertisement of free tax 

preparation products other than on a TurboTax Website” that Intuit disclose “Clearly and 

Conspicuously, and in Close Proximity to the representation that the product is free: (1) 

the existence and category of material limitations on a consumer’s ability to use that free 

product; and (2) that not all taxpayers qualify for the free product.” (RX76 (Intuit) at 20; 

RX261 (Intuit) at 7). 

544. The State Settlement defines “Space-Constrained Advertisement” as any online 

advertisement (including but not limited to “Paid Display Advertisements” and “Paid 

Search Advertisements”12F

13) or video advertisement, except for advertisements on a 

TurboTax website, “that has space, time, format, size, or technological restrictions that 

limit Intuit from being able to make the disclosures required by” the State Settlement. 

(RX76 (Intuit) at 5-6). “Intuit bears the burden of showing that there is a constraint or 

insufficient space and time to make a required disclosure that is Clear and Conspicuous

and in Close Proximity to the triggering term.” (RX76 (Intuit) at 5-6; RX261 (Intuit) at 4-

5).

545. The State Settlement defines “Clearly and Conspicuously” to mean that the disclosure is 

“difficult to miss (i.e., easily noticeable) and easily understandable by ordinary

consumers.” (RX261 (Intuit) at 2-3). For example, “[a] visual disclosure, by its size,

contrast, location, the length of time it appears . . . must stand out from any 

accompanying text or other visual elements so that it is easily noticed, read, and 

understood.” (RX261 (Intuit) at 3). Any audio disclosure must “be delivered in a volume,

speed, and cadence sufficient for ordinary consumers to easily hear and understand it.”

(RX261 (Intuit) at 3; RX76 (Intuit) at 3-4).

546. The State Settlement defines “Close Proximity” to mean that the disclosure is “very near 

the triggering representation and that the disclosure is made simultaneously with the 

triggering representation and remains or is repeated throughout the duration of the

Advertisement.” This definition further provides that a “disclosure made through a 

hyperlink, pop-up, interstitial, or other similar technique is not in Close Proximity to the 

triggering representation.” (RX261 (Intuit) at 3-4; RX76 (Intuit) at 4).

13 “Paid Display Advertisement” is defined in relevant part as an online advertisement “in which Intuit pays, or 

causes another to pay,” for an advertisement to be displayed on a website, regardless of whether consumers click on 

the advertisement. The term “Paid Search Advertisement” refers to payment for advertising to be displayed with 

search engine results for a particular search term, in which payment is made only when consumers click on the 

advertisement. (RX261 (Intuit) at 4; RX76 (Intuit) at 5).
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547. The State Settlement requires that in any “Space-Constrained Advertisement of free tax 

preparation products,” (other than space-constrained video advertisements) Intuit must 

disclose that “eligibility requirements apply.” If the space-constrained advertisement is 

online, Intuit must also “(1) Clearly and Conspicuously include a hyperlink to a landing 

page or webpage on a TurboTax website that Clearly and Conspicuously contains full 

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

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

and Conspicuously sets forth full disclosure of all material eligibility restrictions.” (RX76 

(Intuit) at 20; RX261 (Intuit) at 7).

548. The State Settlement requires that for a period of ten years, in any “Space-Constrained 

Video Advertisements of free tax preparation products,” Intuit must “visually disclose, 

Clearly and Conspicuously, and in Close Proximity to the representation that the product 

is free: (1) the existence and category of material limitations on a consumer’s ability to 

use that free product; and (2) that not all taxpayers qualify for the free product.” (RX76 

(Intuit) at 20; RX261 (Intuit) at 7-8). 

549. The State Settlement requires that for a period of ten years, “Space-Constrained Video 

Advertisements of free tax preparation products” that are 9 seconds or longer must 

“verbally disclose, Clearly and Conspicuously, and in Close Proximity to the 

representation that the product is free, that not all taxpayers qualify.” (RX76 (Intuit) at 

20; RX261 (Intuit) at 7-8).

550. The State Settlement requires that in any advertisement of free tax preparation products 

on a TurboTax website and “any space on a TurboTax Website listing, describing, 

offering, or promoting such free products, Intuit must disclose (1) Clearly and 

Conspicuously and 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, 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.” (RX76 (Intuit) at 21; RX261 (Intuit) at 8).
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III. ANALYSIS AND CONCLUSIONS OF LAW

A. Introduction

1. Overview of Applicable Law

This is a deceptive advertising case brought by the Federal Trade Commission (“FTC” or 

“Commission”) against Respondent Intuit Inc. (“Respondent” or “Intuit”) under Section 5(a) of 

the FTC Act. Intuit advertises and sells TurboTax, a commonly used online tax preparation 

service that enables users to prepare and file their federal income taxes. F. 4-5.13F

14 Section 5(a) 

declares unlawful “deceptive acts or practices in or affecting commerce.” 15 U.S.C. § 45(a)(1).

“An advertisement is deceptive if it contains a representation or omission of fact that is 

likely to mislead a consumer acting reasonably under the circumstances, and that representation 

or omission is material to a consumer’s purchasing decision.” In re POM Wonderful, LLC, No. 

9344, 2013 WL 8364895, at *6 (F.T.C. Jan. 10, 2013), aff’d sub nom. POM Wonderful, LLC v. 

FTC, 777 F.3d 478 (D.C. Cir. 2015); FTC Policy Statement on Deception (appended to In re

Cliffdale Assocs., Inc., 103 F.T.C. 110, 1984 WL 565319 (Mar. 23, 1984)) (“Deception 

Statement”). Thus, the determination of whether an advertisement is deceptive considers three 

elements: (1) the claims conveyed in the advertisement; (2) whether those claims are false or 

misleading; and (3) whether the claims are material. In re Health Research Labs., LLC, No. 

9397, 2021 WL 5711355, at *5 (F.T.C. Nov. 19, 2021); In re California Naturel, Inc., No. 9370, 

2016 WL 7228668, at *5 (F.T.C. Dec. 5, 2016).

2. Claim Interpretation

The claim conveyed by an advertisement may be express or implied. Express claims 

directly state the representation at issue, while implied claims are any claims that are not express. 

In re Kraft, Inc., No. 9208, 1991 WL 11008502, at *58 (F.T.C. Jan. 30, 1991), aff’d sub nom. 

14 Under the FTC Act, the Commission has jurisdiction over persons, partnerships, and corporations using unfair or

deceptive acts or practices “in or affecting commerce.” 15 U.S.C. § 45(a)(2). Respondent is a Delaware corporation 

that has its principal office or place of business in Mountain View, California. F. 1. Respondent has marketed 

TurboTax to consumers in the United States of America (“U.S.”) online as well as through television advertisements

and various other advertising channels. F. 46-50. Millions of Americans use Intuit’s TurboTax Free Edition product, 

discussed in more detail infra. See F. 2, 5. Accordingly, the Commission has jurisdiction over Respondent with 

respect to its alleged deceptive acts and practices.
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Kraft, Inc. v. FTC, 970 F.2d 311 (7th Cir. 1992). Implied claims “range from claims that would 

be virtually synonymous with an express claim through language that literally says one thing but 

strongly suggests another to language which relatively few consumers would interpret as making 

a particular representation.” In re Thompson Med. Co., 104 F.T.C. 648, 1984 FTC LEXIS 6, at 

*312 (Nov. 23, 1984). 

‘“Deception may be accomplished by innuendo rather than by outright false statements.’” 

FTC v. Wilcox, 926 F. Supp. 1091, 1098 (S.D. Fla. 1995) (quoting Regina Corp. v. FTC, 322 

F.2d 765, 768 (3d Cir. 1963)); FTC v. Capital Choice Consumer Credit, Inc., No. 02-21050 CIV, 

2003 WL 25429612, at *4 (S.D. Fla. June 2, 2003) (same), aff’d, 157 F. App’x 248 (11th Cir. 

2005). Thus, both express and implied claims may be deceptive. Kraft, 1991 WL 11008502, at 

*58. 

The first step in determining the claim conveyed by an advertisement is to examine the 

advertisement itself (a “facial analysis”). See POM, 2013 WL 8364895, at *8; Thompson Med., 

1984 FTC LEXIS 6, at *313; Cliffdale, 1984 WL 565319, at *37. A proper facial analysis 

requires ‘“an evaluation of such factors as the entire document, the juxtaposition of various 

phrases in the document, the nature of the claim, and the nature of the transaction.’” POM, 2013 

WL 8364895, at *8 (quoting Deception Statement, 103 F.T.C. at 172). The determination of what 

claim is conveyed by an advertisement focuses on the common-sense, overall “net impression” 

of the advertisement for the reasonable consumer-viewer, rather than the literal truth or falsity of 

the words in the advertisement. In re Traffic Jam Events, LLC, No. 9395, 2021 WL 5124183, at 

*12 (F.T.C. Oct. 25, 2021); Removatron Int’l Corp. v. FTC, 884 F.2d 1489, 1497 (1st Cir. 1989); 

FTC v. Nat’l Urological Grp., Inc., 645 F. Supp.2d 1167, 1189 (N.D. Ga. 2008), aff’d, 356 

F. App’x 358 (11th Cir. 2009). In this regard, the advertisement must be viewed as a whole 

“without emphasizing isolated words or phrases apart from their context.” Removatron, 884 F.2d 

at 1496 (quoting American Home Prods. Corp. v. FTC, 695 F.2d 681, 687 (3d Cir. 1982); see 

also FTC v. Sterling Drug, Inc., 317 F.2d 669, 674 (2d Cir. 1963) (“The entire mosaic should be 

viewed rather than each tile separately.”). 

Where claims are reasonably clear from the face of the advertisement, the finder of fact 

can rely “on its own reasoned analysis to determine what claims, including implied ones, are 
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conveyed . . . .” Kraft, 970 F.2d at 319; see also In re Stouffer Foods Corp., No. 9250, 1994 FTC 

LEXIS 196, at *9 (Sept. 26, 1994) (“If, after examining the interaction of all the different 

elements in the ad, the Commission can conclude with confidence that an ad can reasonably be 

read to contain a particular claim, a facial analysis is sufficient basis to conclude that the ad 

conveys the claim.”).

“[W]hen confronted with claims that are implied, yet conspicuous, extrinsic evidence is 

unnecessary” because common sense and administrative experience provide adequate tools to 

make findings. Kraft, 970 F.2d at 319-20. However, if extrinsic evidence regarding the meaning 

of an advertisement is submitted by the parties, it will be considered. POM, 2013 WL 8364895, 

at *16-18.

3. False or Likely to Mislead

The determination of whether a representation or omission is deceptive is based on 

whether it is false or likely to mislead, not whether it has caused actual deception. Deception 

Statement, 103 F.T.C. at 172; Thompson Med. Co. v. FTC, 791 F.2d 189, 197 (D.C. Cir. 1986); 

Trans World Accounts Inc. v. FTC, 594 F.2d 212, 214 (9th Cir. 1979) (“Proof of actual deception 

is unnecessary to establish a violation of Section 5.”). The question of whether the claim is likely 

to mislead assesses the likelihood to mislead a consumer “acting reasonably under the 

circumstances.” Deception Statement, 103 F.T.C. at 171; Southwest Sunsites v. FTC, 785 F.2d 

1431, 1436 (9th Cir. 1986); Wilcox, 926 F. Supp. at 1098. 

“[A] claim may be deceptive even though it is literally true.” Cap. Choice Consumer 

Credit, 2004 WL 5149998, at *32. Moreover, a true statement can be false or misleading by

omission. “The failure to disclose material information may cause an advertisement to be 

deceptive, even if it does not state false facts.” Sterling Drug, Inc. v. FTC, 741 F.2d 1146, 1154 

(9th Cir. 1984); see also Cap. Choice Consumer Credit, 2004 WL 5149998, at *33.

If a “claim conveys more than one meaning, only one of which is misleading, a seller is 

liable for the misleading interpretation even if non-misleading interpretations are possible. 

Liability may be imposed if ‘at least a significant minority of reasonable consumers [would be] 

likely to take away the misleading claim.’” Fanning v. FTC, 821 F.3d 164, 170-71 (1st Cir. 
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2016) (quoting Telebrands Corp., 140 F.T.C. 278, 291 (2005), aff'd, 457 F.3d 354 (4th Cir. 

2006)).

4. Materiality

A representation is considered material if it “involves information that is important to 

consumers and, hence, likely to affect their choice of, or conduct regarding, a product.” FTC v.

Cyberspace.com, 453 F.3d 1196, 1201 (9th Cir. 2006) (quotation omitted); see also Kraft, 970 

F.2d at 322. “Information has been found material where it concerns the purpose, safety, 

efficacy, or cost of the product or service.” Deception Statement, 103 F.T.C. at 190 (citing 

cases); Thompson Med., 1984 FTC LEXIS 6, at *375.

B. Overview of Arguments of the Parties

Counsel representing the government on the Complaint (“Complaint Counsel”) contends 

that Respondent engaged in a deceptive practice by advertising to consumers, for many years and 

through a variety of marketing channels, that they could file their taxes online for free using 

TurboTax. This advertising was false and/or likely to mislead consumers, according to 

Complaint Counsel, because two-thirds of taxpayers do not, in fact, meet the conditions and 

qualifications for TurboTax’s free online tax filing offer. Complaint Counsel argues further that 

the cost of a product is a material fact influencing a consumer’s choice with respect to a product. 

Therefore, Complaint Counsel concludes, Respondent engaged in deceptive advertising in 

violation of Section 5 of the FTC Act.

Respondent argues that Complaint Counsel has failed to prove that Intuit’s advertising 

was deceptive. In summary, Respondent maintains that Intuit’s advertising made clear to any 

reasonable consumer that the TurboTax free offering was limited, conditional, and not available 

to everyone; that the conditions and qualifications were sufficiently disclosed in its advertising 

and further available to consumers on its website; and that the relatively small proportion of 

consumer complaints and other extrinsic evidence rebut the assertion that Respondent’s 

advertisements were misleading and demonstrate that reasonable consumers were not deceived.
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C. Overview of the Initial Decision

As further explained below, Complaint Counsel has demonstrated that Respondent 

violated Section 5 by engaging in deceptive advertising. Numerous, widely distributed 

advertisements for TurboTax expressly or impliedly represented that the consumer-viewer would 

be able to file their taxes online for free using TurboTax, when, for a significant proportion of 

these consumers, this was simply untrue. Respondent’s purported disclosures of the conditions 

and qualifications for the free online filing offer were typically inconspicuous, unclear, or 

otherwise insufficient to inform a reasonable viewer of the terms of the offer or to modify the 

dominant message of “free.” In addition, Respondent’s representations and omissions were 

material. Accordingly, the evidence proves that Respondent engaged in a deceptive practice, as 

defined by the FTC Act and applicable cases and authorities.

This Initial Decision first provides some background on Intuit and an overview of the 

advertising at issue. Next, the Initial Decision sets forth and explains the findings and 

conclusions regarding the deceptive claims and omissions contained in Respondent’s video and 

radio advertising, and online advertising, including social media advertising, paid search 

advertising, and direct mail advertising. Thereafter, Respondent’s affirmative defenses are 

addressed. Finally, the Initial Decision addresses the appropriate remedy.

D. Background 

1. The TurboTax Products

TurboTax is the most widely used online tax preparation service in the country. F. 5. The 

TurboTax brand of online tax preparation products and services encompasses three categories of 

products – Do-It-Yourself (“DIY”), Live Assisted, and Live Full Service – that offer different 

levels of tax-filing assistance. F. 11.14F

15 Each category includes four different products, or “stock 

keeping units” (“SKUs”). F. 10, 15. The various SKUs cover different tax situations related to 

15 TurboTax DIY SKUs allow taxpayers to prepare and file their tax returns on their own; TurboTax Live Assisted 

SKUs allow taxpayers to prepare and file their tax returns themselves after receiving tax assistance, including a final 

review before filing; and TurboTax Live Full Service SKUs provide taxpayers with a tax specialist who prepares 

and files a customer’s tax return entirely on the customer’s behalf. F. 12-14. TurboTax has at times offered a limited 

promotion of free assisted SKUs, referred to as TurboTax Live Basic. F. 17-18.
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the level of complexity of the consumer’s taxes, which is tied to the type of income and/or 

deductions the taxpayer has. F. 15; see also F. 16-18. 

Since at least 2016, Respondent has offered a free version of TurboTax for individuals 

filing income taxes. F. 19; see also F. 22-31. The free version of TurboTax was called “Federal 

Free Edition” for tax year (“TY”)15F

16 2016 and “TurboTax Free Edition” thereafter. F. 19. From 

TY 2014 to TY 2017, Intuit offered a promotion, called AbsoluteZero, which allowed customers 

using a free Turbo Tax SKU, such as TurboTax Free Edition, for their federal taxes to also 

prepare and file their state tax returns for free during the first five weeks of the tax-filing season 

(later expanded to the first fifteen weeks of the tax filing season). F. 23.16F

17 In TY 2018, Intuit 

began offering free federal and state returns to TurboTax Free Edition customers for the entire 

year. F. 24.

TurboTax Free Edition is available only to taxpayers with “simple tax returns,” as 

defined by Intuit. F. 20. Intuit has changed the definition of simple tax returns over time to 

reflect changes made by the United States Internal Revenue Service (“IRS”), such that which 

consumers could file for free with TurboTax has varied depending on the tax year. F. 25. 

For TY 2016 and TY 2017, Intuit defined simple tax returns as those that could be filed 

with an IRS Form 1040EZ or Form 1040A. F. 26. In response to tax reform legislation passed by 

Congress effective in TY 2018, the IRS eliminated Form 1040EZ and Form 1040A and 

substituted a new Form 1040. F. 28. Form 1040 then became the most basic individual tax form. 

F. 28.

After the IRS discontinued Form 1040EZ and Form 1040A, Intuit changed its definition 

of simple tax returns for TY 2018 and TY 2019 to mean returns that could be filed on a Form 

1040, with no attached schedules. F. 29. For TY 2020, Intuit modified its definition of simple tax 

returns to mean returns that could be filed on a Form 1040, with no attached schedules, except to 

16 For purposes of this Initial Decision, the reference to a tax year (TY) in which an advertisement appeared refers to 

the period considered by Intuit to be the tax season for a particular calendar year, generally the period from

November to April. F. 7-8, 51 n.7.

17 Because the name of the free state tax filing promotion from TY 2014 to TY 2017 was “AbsoluteZero,” Intuit 

used the AbsoluteZero name in its advertising during that time period. F. 23.
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claim unemployment income. F. 30. For TY 2021, Intuit modified its definition of simple tax 

returns to mean returns that could be filed on a Form 1040, with certain attached schedules to 

cover distinct tax situations, including student loan interest. F. 31.

Many taxpayers do not meet Intuit’s definition of “simple tax returns” and therefore do 

not qualify for Turbo Tax Free Edition. F. 35. This includes taxpayers with mortgage and 

property deductions, itemized deductions, unemployment income, education expenses, charitable 

donations of over $300, investment or rental property income, and expenses from self-owned 

businesses. F. 38. Approximately two-thirds of taxpayers (approximately 100 million taxpayers) 

are not eligible to file for free using TurboTax Free Edition. F. 36-37.

Taxpayers who are not eligible for TurboTax Free Edition may utilize one of Intuit’s paid 

products, such as TurboTax Deluxe, TurboTax Premium, or TurboTax Self-Employed. F. 40-43. 

Taxpayers who are not eligible for TurboTax Free Edition may begin preparing their taxes in 

Free Edition, but upon entering disqualifying information, taxpayers are presented with a screen 

that informs them that they need to upgrade to a paid product in order to complete their return

using TurboTax. F. 39-40. Upgrading to a paid version of TurboTax can cost a taxpayer up to 

$119 to file their taxes using a Do-It-Yourself version. F. 44.

2. Intuit’s Advertising

Intuit offers a free version of TurboTax with the hope that those customers who use it 

will return to TurboTax and choose its paid products in future years as their tax complexity 

evolves. F. 21. While Intuit advertises for its free and paid TurboTax products, as well as the 

TurboTax brand generally, Intuit’s advertising for TurboTax Free Edition raises awareness for 

the TurboTax brand in general. F. 46-47. Intuit’s advertising for its TurboTax free products has 

been widely disseminated throughout the U.S. F. 50. 

Since at least 2015, Intuit has extensively promoted TurboTax online filing products, 

including its free versions, such as TurboTax Free Edition, using numerous advertising channels, 

including television and radio advertisements and online video and display advertisements. F. 49; 

see section II.B.2-4. More specifically, Intuit has advertised its TurboTax free tax filing products 

through social media platforms such as Facebook, Instagram, Twitter (now known as X), 
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Snapchat, and TikTok, and on video platforms such as YouTube. F. 56; see section II.B.4. Intuit 

has also used paid search advertising through which Intuit bids on keywords to return a

TurboTax advertisement at the top of an online search results page when consumers search for 

those keywords. F. 57; see section II.B.6. In addition, Intuit has engaged in direct email 

marketing. F. 58; see section II.B.5. 

As detailed in the facts and addressed below, from TY 2018 through TY 2021, Intuit ran 

an advertising campaign referred to within Intuit as “The Power of Free,” in which the word 

“free” is essentially the only word used or spoken in the advertisements, except for a voice-over

at the end of the advertisement (referred to herein at times as the “free, free, free” campaign or 

“free, free, free” advertisements). F. 52. From TY 2018 through TY 2021, Intuit aired “free, free, 

free” television advertisements at least 84,356 times across at least 721 television networks. 

F. 53. This included television networks in every state in the country. F. 53. Online video 

advertisements placed by Intuit, principally on YouTube, for TY 2020 and TY 2021, reflect a 

continuation of the “free, free, free” campaign. See F. 291-317. These video advertisements were 

viewed millions of times. See F. 222.

E. Deceptive Advertising

1. Claim Conveyed

a. Facial Analysis

i. Television and Radio Advertising 

(a) Summary of Advertising

A 60-second television advertisement referred to as the “Boston Tea Party” 

advertisement aired during the 2015 Super Bowl. F. 67. The advertisement depicts a fictionalized 

version of the Boston Tea Party and interposes the following during the “battle”:

FIRST REVOLUTIONARY: No taxation without represent . . .

FIRST BRITISH SOLDIER: Yes, yes, we hear you on the tax thing.

SECOND BRITISH SOLDIER: But what if it were free to file your taxes? 
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SECOND REVOLUTIONARY: Like, free free? 

SECOND BRITISH SOLDIER: Yes, yes. You’d pay nothing. Not a thing. No 

thing.

THIRD REVOLUTIONARY: Well alright then!

[music]

FOURTH REVOLUTIONARY: Alright then!

F. 67. While the scene shows George Washington and the revolutionaries retreating in a boat, a 

voice-over begins:

Okay, so maybe that’s not exactly how it went down, but you can file on 

TurboTax for absolutely nothing. Intuit TurboTax. It’s amazing what you’re 

capable of.

F. 67.

Near the end of the Boston Tea Party advertisement, during the voice-over and while the 

screen action continues, a screen appears referencing TurboTax Federal Free Edition and 

“AbsoluteZero.” The following relevant language appears at the bottom of the screen in small, 

white print: 

TurboTax Federal Free Edition is for simple U.S. returns only. Offer may end 

without notice. See offer details at TurboTax.com. 

F. 68.

A 30-second advertisement that aired during the 2016 Super Bowl, titled “Never a 

Sellout,” shows a purported interview with the actor Sir Anthony Hopkins. F. 69. The interview 

includes the following relevant exchange:

INTERVIEWER: Sir Anthony Hopkins, every actor at some point considers 

selling out. 

SIR ANTHONY HOPKINS: I would never tarnish my name by selling you 

something. Now, if I were to tell you to go to turbotax.com, it’s because 

TurboTax AbsoluteZero lets you file your taxes for free.

INTERVIEWER: You’re . . . you’re not selling anything.
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HOPKINS: It’s free. There’s nothing to sell. Come here, TurboTax.com. [dog 

wearing TurboTax.com vest jumps on his lap] Such a good girl, 

TurboTax.com.

F. 69. As the interview proceeds, for approximately three seconds, small, white print at the 

bottom of the screen displays the same relevant language as that at the end of the Boston Tea 

Party advertisement, i.e., “TurboTax Federal Free Edition is for simple US returns only. Offer 

may end without notice. See offer details at TurboTax.com.” F. 70.

Respondent’s television advertisements for TY 2017 set up humorous or ironic situations 

between characters, which culminate in the statement, “At least your taxes are free” or “With 

TurboTax AbsoluteZero, at least your taxes are free.” F. 71, 73, 81, 85, 89; see also F. 76 (“[A]t 

least my taxes are free.”). Some advertisements also displayed the TurboTax AbsoluteZero logo. 

F. 87, 91. As with the 2015 and 2016 Super Bowl advertisements, these TY 2017 television 

advertisements very briefly displayed – at varying points in the advertisements, while the action 

proceeded in the background – white, small print lettering. The relevant language in these 

advertisements consisted of: “For simple U.S. returns. Offer may end without notice, customer 

must file taxes before offer ends to file for free. See offer details at TurboTax.com” (F. 82, 90) or 

“AbsoluteZero product only. For simple U.S. returns. Offer may end without notice, customer 

must file taxes before offer ends to file for free. See offer details at TurboTax.com.” F. 72, 74,

77-78, 86.

For TY 2018 through TY 2021, Respondent ran television advertisements, of varying 

lengths ranging from 15 to 60 seconds, that can be characterized as the “Free, Free, Free” 

advertisements. These advertisements present situations, such as a lawyer before a jury (F. 92-

94, 97-98), contestants in a game show (F. 120-121, 129-130), competitors in a spelling bee 

(F. 160-161, 164, 167, 171-172), an auctioneer (F. 176-177), or a dance workout instructor 

(F. 182-183), in which virtually the only word spoken is the word “free.” As an example, the 

“Lawyer” advertisement consists of a lawyer making an impassioned summation before a jury, 

as follows:
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LAWYER: Free free free free free free free free free. Free free free. Free free 

free. Free free free free free. Free free free free free free free free. Free free 

free free free free!

JUROR: (applauding) Free!

OTHER JURORS: Free. Free. Free.

UNIDENTIFIED VOICES: Free free free.

F. 94, 98; see also F. 102-105, 108-110, 112-113, 115-116 (“movie credits” advertisement, 

where the “credits” all read “free”); F. 134-135, 139-140 (“court reporter” advertisement, where 

a court stenographer reads back a transcript consisting only of the word “free”); F. 144-145, 148-

149 (“crossword” advertisement, where all the answers are “free”); F. 152-154 (“big kick” 

advertisement in which a father and son play football and speak only the word “free”); F. 188-

190 (“dog show” advertisement, in which “free” is the only word spoken by the judge and the 

dog handler).

A voice-over at the end of many TY 2018 and TY 2019 television advertisements stated, 

“That’s right. TurboTax Free is free. Free, free free free.” F. 94, 98, 104, 122, 126, 131, 136; see 

also F. 146, 150, 155, 162, 165, 168 (“That’s right. TurboTax Free is free.”). These “free, free, 

free” advertisements included, for a few seconds toward the end of each advertisement, during 

the voice-over, a screen featuring the TurboTax logo, the repeated written word “free” and small, 

white lettering at the bottom that read: “Free Edition product only. For simple U.S. returns. Offer 

subject to change. See details at turbotax.com.” F. 95-96, 99-100, 106-107, 111, 114, 122-123, 

126-127, 136-137, 147, 155-158, 162-163, 165-166, 168-169.
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A representative screen is set forth below:

F. 96. 

In TY 2020 and TY 2021 television advertisements, after stating, “That’s right. TurboTax 

Free Edition is free,” the voice-over added: “See details at TurboTax.com.” F. 179, 183 190. 

Beginning in TY 2019 for some television advertisements and continuing for television 

advertisements in TY 2020 and TY 2021, the small white print at the bottom of the screen at the 

end of the advertisements read: “TurboTax Free Edition is for simple U.S. returns only. See if 

you qualify at turbotax.com. Offer subject to change.” F. 117, 131-132, 141-142, 150-151, 173-

174, 178-179, 184-185, 191-192. A representative screen is set forth below: 

intuit 

✓ turbotaxfree 

Free, free free free. 
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F. 179. 

Respondent also aired on television for TY 2021 an advertisement referred to as the 

“Steven/Spit Take” advertisement. F. 195-202. These 14 to 28-second advertisements promoted 

a free version of “TurboTax Live,” which offered free filing with the help of an expert. The 

longer version of this advertisement is described below: 

VOICE-OVER: Steven, did you know that TurboTax is free no matter how 

you want to file? 

[Steven spits out mouthful of coffee] 

Steven: I don’t believe that. 

VOICE-OVER: It’s true. Anyone with a simple tax return can get help from 

an expert, for free.

[Steven spits out coffee again] 

Steven: That can’t be true.

VOICE-OVER: It is and with TurboTax Live our experts will even do your 

taxes for you for free.

[Steven spits coffee a third time]

Other man: Honestly, that sounds amazing. 

• • lnTUIT 

✓ turbotax. Free Edition 

' ' , ,•• ',, ... , ' 
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VOICE-OVER: For a limited time, TurboTax is free for simple returns no 

matter how you file.

F. 199. At the end of the 28-second Steven/Spit Take advertisement, during the voice-over, 

wording appears in the middle of the screen that reads, “Intuit TurboTax Live,” and the “simple 

returns” language from the voice-over is included in small, white print at the bottom of the 

screen. F. 200 (“For simple tax returns only. See if you qualify at turbotax.com. Must file by 

2/15 for free offer. Offer subject to change.”).

Respondent also placed radio advertisements for TY 2020 and TY 2021 that paralleled 

the structure of the “free, free, free” television advertisements. These advertisements consisted of 

a jingle where the only word sung is “free.” F. 204-205, 208-209, 212-213, 216-217. As in the 

television advertisements summarized above, a voice-over near the end of the radio 

advertisements states, “That’s right, TurboTax Free is free. Free, free free free.” F. 206, 210; see 

also F. 214, 218 (“That’s right, TurboTax Free Edition is free. Free, free free free.”). For the 

radio advertisements, the voice-over is immediately followed by another voice-over, stating in a 

rapid cadence: “Free Edition product only. For simple U.S. returns. Offer subject to change. See 

details at turbotax.com.” F. 207, 211, 215, 219.

(b) Claim Conveyed

As stated above, where a claim is reasonably clear on the face of an advertisement, a 

facial analysis is legally sufficient to determine the claim conveyed, including implied claims. 

Kraft, 970 F.2d at 319-20. As detailed in section II.B.2, 3 and summarized above, Respondent 

disseminated advertisements through television and radio that, on their face, either expressly or 

by strong implication claimed that the consumer viewing or hearing such advertisements can file 

their taxes for free with TurboTax. For example, the Boston Tea Party advertisement states, 

expressly, “you can file on TurboTax for absolutely nothing.” F. 67. The free filing claim is 

clearly implied in other advertisements, particularly in the “free, free, free” advertisements. The 

unrelenting repetition of the word “free,” combined with the assertion, “That’s right. TurboTax 

Free [or TurboTax Free Edition] is free. Free, free free free,” expressly or clearly implies that 

TurboTax is free for the viewer. E.g., F. 94, 104, 122, 136, 206, 214; see also F. 146, 155, 162

(“That’s right, TurboTax Free is free”), F. 177, 190 (That’s right. TurboTax Free Edition is 
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Free.”); F. 71, 73, 81, 85, 89 (television advertisements for TY 2017 stating that “At least your 

taxes are free”). At a minimum, a facial analysis supports a conclusion that at least a significant 

minority of reasonable consumers would take away the claim that they can file their taxes for 

free with TurboTax. See Deception Statement, 103 F.T.C. at 177 n.20 (noting that a reasonable 

interpretation is one that would be shared by a “significant minority” of reasonable consumers).

Respondent maintains that its advertising conveyed to consumers that its free tax filing 

offer was limited, and not necessarily free for everyone. Specifically, Respondent asserts the 

advertising disclosed to viewers (1) that the free filing offer was only for a specific TurboTax 

free product (SKU), (2) that a consumer’s ability to use the free SKU was tied to the complexity 

of that consumer’s tax return (i.e., “simple” tax returns), and (3) that there was additional 

information about the SKU and its qualifications on the TurboTax website. RB at 37. 

Respondent argues that these disclosures should be included in assessing the overall net 

impression of the advertisement. These disclosures have been considered, and for the reasons 

explained below, they are insufficient to alter the overall net impression that the consumer 

viewing the advertisement could file their taxes for free with TurboTax.

In evaluating Respondent’s disclosures, the power of a “free” claim must be considered. 

As a general matter, it is well established that disclosures or qualifications must be clear and 

conspicuous in order to modify the dominant message in an advertisement. See Removatron, 884 

F.2d at 1497 (“Disclaimers or qualifications in any particular ad are not adequate to avoid 

liability unless they are sufficiently prominent and unambiguous to change the apparent meaning 

of the claims and to leave an accurate impression.”); see also Deception Statement, 103 F.T.C. at 

184 (“Qualifying disclosures must be legible and understandable.”). Given the power of “free” 

messaging, the need for the advertiser to provide clear and conspicuous disclosures of any 

limitations or conditions is particularly strong. “The word ‘free’ is a lure. It is the bait. It is a 

powerful magnet that draws the best of us against our will ‘to get something for nothing.’” In re 

Book-of-the-Month Club, Inc., 48 F.T.C. 1297, 1952 WL 104729, at *14 (May 8, 1952). “The 

astute advertiser well knows that once the average mind has received the impression conveyed 

by the meaning of the word ‘free’ it can never be completely eradicated by any other words of 

explanation or contradiction.” Id.; cf. FTC v. Mary Carter Paint Co., 382 U.S. 46, 47 (1965)

(referring to the word “free” as “commercially exploitable”). 
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Respondent first asserts that its advertisements conveyed that the free offer only applied 

to TurboTax’s free products, such as TurboTax Free Edition, and that this disclosure notified the 

consumer that the free offer was not unlimited. As a preliminary matter, some of the television 

advertisements at issue do not specify a particular free product, such as TurboTax Free Edition, 

or do so in small, inconspicuous lettering. F. 63. The radio advertisements that mention 

TurboTax Free Edition do so at a significantly faster speed than the content of the rest of the 

radio advertisement. F. 207, 211, 215, 219. Even if a consumer perceived that the advertisement 

was limited to a TurboTax free product, such as TurboTax Free Edition, the inclusion of the 

product name does not disclose anything about potential limitations on the free offer. Without 

any further disclosures, the mere name of the product is unlikely to dispel a viewer’s impression 

that TurboTax Free Edition, AbsoluteZero, or TurboTax Basic, was free for them. In fact, the 

reference to AbsoluteZero could be interpreted as reinforcing the “file for free” claim, rather than 

detracting from it. 

Respondent also points to written words appearing in many of the television 

advertisements which referred to “simple returns” or “simple returns only.”17F

18 However, this 

purported disclosure was not conspicuous. In virtually all the television commercials, this 

disclosure was in small print and located at the bottom of the screen. F. 64. In many of these 

advertisements, the small font was relatively faint in color and was virtually lost against the other 

larger, bolder, printed messages, such as the TurboTax logo and the adjacent word(s), “free.” 

F. 65. Small print disclosures such as those used by Respondent that are not readily visible are 

generally insufficient to alter the otherwise dominant impression of an advertisement. FTC v. 

Grant Connect, LLC, 827 F. Supp. 2d 1199, 1214, 1220-221 (D. Nev. 2011), vacated in part on 

other grounds, 763 F.3d 1094 (2014); Deception Statement, 103 F.T.C. at 183. In addition, these 

disclosures in Respondent’s television advertisements typically appeared near the end of the 

advertisement and lasted only a few seconds. F. 66. Moreover, the disclosures often appeared

against a backdrop of other sounds or moving images, including at times a voice-over 

simultaneously reinforcing the “free” claim. F. 66. The disclosures in the “free, free, free,” radio 

advertisements were stated at the end of the advertisement, after the repetitive singing of the 

18 Based on calculations of Respondent’s expert witness, Professor Peter Golder, Ph.D., 10% of Intuit’s “free” 

advertising did not include the language regarding “simple returns only.” F. 61.
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word “free”, and after a voice-over reinforcing the “free” claim, F. 204-219. Furthermore, these 

stated limitations were played in a very rapid cadence in comparison to the free messages in the 

advertisements. F. 207, 211, 215, 219. All of these factors detract from a consumer’s ability to 

hear and comprehend the purported limiting conditions. 

In addition, the interjection of “simple tax returns” tends to contradict the generalized 

“free” claim that dominates the advertisements, and thereby injects an ambiguity that serves to 

confuse the viewer. Confusing or ambiguous qualifiers are, by definition, not “clear.” See In re 

Daniel Chapter One, No. 9329, 2009 FTC LEXIS 157, at *215 (Aug. 5, 2009). Indeed, 

qualifications must be unambiguous in order “to change the apparent meaning of the claims and 

to leave an accurate impression. Anything less is only likely to cause confusion by creating 

contradictory double meanings.” Removatron, 884 F.2d at 1497; see also Deception Statement, 

103 F.T.C. at 184 (noting that qualifying disclosures must be both legible and understandable). 

To the extent Respondent’s advertisements could be interpreted as conveying either an 

unqualified free offer available to the viewer or a qualified offer that may not apply to the 

viewer, such ambiguity is construed against the advertiser. Resort Car Rental Sys., Inc. v. FTC, 

518 F.2d 962, 964 (9th Cir. 1975) (“Advertising capable of being interpreted in a misleading way 

should be construed against the advertiser.”).

Finally, Respondent relies on language on the disclosure screen stating “see details” or 

“see if you qualify” on the TurboTax website as evidence that the advertisement notified the 

viewer that the free offer was not necessarily free for them. This language, which, like 

Respondent’s other purported disclosures, appeared briefly in small, typically faint print, or was 

speedily announced at the end of the radio advertisements, was not conspicuous. In addition, 

such boilerplate or “pro forma statements” such as “see details” or “see if you qualify” are 

unlikely to alter the overall net impression of an advertisement. Deception Statement, 103 F.T.C. 

at 183. At best, such messages create ambiguity in Respondent’s dominant “free” messaging 

rather than materially modify it. 

ii. Online Advertising

As noted above, Respondent uses online advertising to reach consumers. F. 49, 56. 

Online advertisements include display advertisements, such as banners displayed on websites, 
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and display or video advertisements placed on social media sites such as TikTok, Facebook, or 

Snapchat. F. 220. Respondent’s online advertisements were widely disseminated. F. 50. In TY 

2020 and TY 2021, TurboTax Free online advertisements generated over 15 billion impressions 

and were clicked on over 130 million times.18F

19 F. 221-222.

(a) Online Video Advertisements

The online video advertisements placed by Intuit, principally on YouTube, for TY 2020 

and TY 2021 reflect a continuation of the “free, free, free” campaign widely distributed on 

television from TY 2018 through TY 2021. See F. 291-317. Intuit’s online video advertisements 

were viewed millions of times. See F. 222, 300, 308.

An example of the online video advertisements placed on YouTube for TY 2020 is a 

video consisting solely of a woman hiking, yelling “free” when reaching the top of a mountain, 

and listening as the word “free” echoes back (the “Echo” advertisement). F. 291. In a similar 

vein, a YouTube video advertisement placed for TY 2021 depicts a teenage boy and teenage girl 

appearing to reconcile their relationship while communicating through only the word “free” (the 

“Teen Love” advertisement). F. 317. 

At the end of both the Echo and Teen Love advertisements, a screen appears referencing 

TurboTax Free Edition, but the reference is immediately adjacent to repetition of the written 

words “free, free, free, free,” as shown below:

19 Complaint Counsel’s exhibits include 43 static display advertisements, 47 non-static display advertisements, and 

19 online video advertisements offered in support of its claim of deceptive advertising. All of these exhibits have 

been reviewed, but fact findings have not been included for each advertisement exhibit. Some advertisement exhibits 

were incomplete. Moreover, it is unnecessary to undertake fact findings and a facial analysis of each proffered 

exhibit, particularly where, as here, doing so would not affect the outcome in the case. In re Amrep Corp., 1983 FTC 

LEXIS 17, at *566-67. 
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F. 293, 317. The written words “free, free, free” are also reinforced by a voice-over (“That’s 

right. Turbo Tax Free Edition is free. Free, free, free, free.”). F. 293, 317.

In both the Echo and Teen Love advertisements, the purported qualification for “simple 

U.S. returns only” is in very small print. F. 292-293, 317. Although the wording of the 

concluding disclosure screens is modified from that of the “free, free, free” television 

advertisements – stating “See if you qualify at turbotax.com” instead of “See details at 

turbotax.com” (compare F. 292-293, 317 with F. 96, 106, 123, 137, 147, 156, 163) – viewed in 

their entirety, the final screen disclosures in the Echo and Teen Love online video advertisements 

are materially the same as those in the “free, free, free” television advertisements.

Intuit’s other online video advertisements for TY 2020 and TY 2021 that 

materially replicate the claims and purported disclosures in the TurboTax television 

advertisements include:

- the “Auctioneer” advertisement, F. 177, 297 (AUCTIONEER: And free, 

and free, and free, and free, and free. Now a bidder and free! Now give me 

another bidder and free and a free here and a free free free a free free free. 

Now a bidder and free! Now give me another bidder and free, and a free 

free free. And free, and free, and free, and free free and free. Here we go 

at free, free, free, and freeeeeeeeeeee. Free! VOICE-OVER: That’s right. 

TurboTax Free Edition is Free. See details at TurboTax.com”); 

- the Dance Workout advertisement, F. 183, 306-307, 310-312, 314, 

(DANCE WORKOUT INSTRUCTOR: Free! And free! And free! And 

free! Free. And free, and free. Free free. And free, and free, and free, and 
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free, and free. VOICE-OVER: That’s right, TurboTax Free Edition is free. 

See details at TurboTax.com”); and 

- the Dog Show advertisement, F. 190, 315 (DOG SHOW JUDGE: Free, 

free, free! WINNING DOG HANDLER: Free! Free! VOICE-OVER: 

That’s right, TurboTax Free Edition is free. See details at TurboTax.com).

The final screens with purported disclosures in the foregoing advertisements are also 

materially the same as the television versions of these advertisements. Compare F. 178-179, 184-

185, 191-192, with F. 298-299, 306-307, 310-312, 315.

As with the television advertisements addressed in section III.E.1.a.i above, based on a 

facial analysis, the unrelenting repetition of the word “free” in the online video advertisements, 

combined with the assertion, “That’s right. TurboTax Free Edition is free. Free, free free free,” 

expressly conveys – or at a minimum clearly implies – that TurboTax is free for the viewer. 

Thus, a facial analysis supports a conclusion that at least a significant minority of reasonable 

consumers would take away the claim that they can file their taxes for free with TurboTax. And, 

as with the “free, free, free” television advertisements, the small print, relatively faint lettering 

displayed briefly at the end of the advertisement referencing “simple returns only” was

inconspicuous and virtually lost against the larger, bolder, printed words, and the voice-over 

stating, “free, free, free, free.” To the extent any consumer would perceive the purported 

limitation to “simple returns,” the language tends to contradict the dominant message of “free,” 

and thereby interjects confusion and ambiguity into the advertisement, which should be 

construed against the advertiser. Similarly, the small print lettering stating “See if you qualify” 

was not conspicuous and, even if visible, is in the nature of a “pro forma” statement” that is 

unlikely to alter the overall net impression of an advertisement. Deception Statement, 103 F.T.C. 

at 183.

Finally, while the online video advertisements reference TurboTax Free Edition in 

writing and by voice-over, the inclusion of the product name does not itself signify any 

limitation on who qualifies for the free offer or disclose any qualification criteria. 

Without any further information, the product name TurboTax Free Edition is unlikely to 

dispel a viewer’s impression that the product is free for them. In fact, juxtaposing the 
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“Free Edition” name to the written and audible words “Free, free, free, free” serves to 

reinforce the “file for free” claim, rather than to detract from it.

(b) Display Advertisements

Intuit placed numerous display advertisements online for TY 2020 and TY 2021, 

including on social media and other websites, that contained prominent, express claims that 

filing with TurboTax online was “FREE” and/or cost “$0.” See F. 230-256. Clicking on the 

display advertisements for TurboTax Free Edition takes the viewer to the general landing page 

for that product on the TurboTax website. F. 225. 

The purported limiting qualifications upon which Respondent relies – i.e., inclusion of a 

specific TurboTax free product and a reference to “simple returns only” – are not, in many of 

Respondent’s display advertisements, sufficient to alter the dominant, facially clear claim that 

filing online with TurboTax was free to the consumer viewing the advertisement. In many cases, 

the language, “simple returns only,” or its variants, was much less prominent than other elements 

of the advertisements, especially the language or images of “FREE” or “$0.” F. 226. Similarly,

where the display advertisements at issue contain the name of a TurboTax free product, such as 

TurboTax Free Edition or TurboTax Live Basic, they do so in significantly smaller, and/or 

lighter, less noticeable font, compared to the “TurboTax” logo. F. 228. Representative examples 

of such advertisements are set forth below:
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F. 233; see also F. 236, 254. 

F. 234; see also F. 238, 243, 252. 

,ntu,t ~ turbotax. free Edition 

- guaranteed - Fed State To File 

Simple tax returns only 

Maximum refund, guaranteed. 
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A facial analysis of the display advertisements in TY 2020 and TY 2021, such as the 

foregoing, in which the representations of “FREE” and/or “$0” clearly dominate the relatively 

inconspicuous words of qualification or limitation, supports the conclusion that at least a 

significant minority of reasonable consumers would take away the impression that they could file 

for free using TurboTax. 

Some of the display advertisements at issue show the phrase “simple tax returns only” in 

a way that is arguably more conspicuous, for example, by showing the words directly adjacent to 

the free claim and in a noticeable font size and appearance. Examples are shown below:

F. 232. 

F. 231. 

F. 266. 

✓ File Fed & State FREiE. - turbotax. Simplg tax ret urns only. Free 1Edition 

~ $0 r -d $0 St.JI $0 To 1le. turbotax s mple tax retums only f-- I 
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F. 261. 

Some of the online video display advertisements at issue also have an accompanying 

voice-over. F. 270. In these, some begin with a voice-over stating, “Simple tax returns only. File 

your federal and state taxes for free. Guaranteed.” F. 271. In others, the voice-over stating 

“simple tax returns only” is at or near the end. F. 272. A representative example is GX581, 

which includes the screenshot below and a voice-over that states: “File your taxes free, your 

way. Do it yourself free. Get unlimited advice from tax experts free or have an expert do it all for 

you. 100% free. Only from TurboTax. Simple tax returns only. Must file by February 15th.” 

F. 284.
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Even if advertisements disclosing a “simple returns only” limitation in conspicuous 

written language and/or in voice-over are reasonably interpreted as making a qualified or limited 

free offer, as urged by Respondent, this would not negate a finding that at least a significant 

minority of reasonable consumers could take away the impression that TurboTax tax filing was 

free for them. The advertisements themselves do not include any of the material terms of such 

limitations. Without further information on the face of the advertisement, the language “simple 

returns only” tends to render the free offer (often stated as “guaranteed”) ambiguous and 

confusing at best. Such ambiguity in an advertisement is construed against the advertiser. Resort 

Car Rental, 518 F.2d at 964; Daniel Chapter One, 2009 FTC LEXIS 157, at *215. 

Notwithstanding the foregoing, extrinsic evidence relevant to the potential effect of the 

purported disclosures of “simple returns only” and the Free Edition product name on the message 

conveyed to consumers will be considered infra. 

iii. Email Advertisements

Intuit sends email advertisements, including those for TurboTax Free Edition, to 

individuals who had previously used TurboTax or started their return in TurboTax but had yet to 

complete it. F. 330. Typically, the emails begin with prominent representations that the recipient 

can file for free with TurboTax. E.g., F. 319-323, 328. Two examples of the beginning portions 

of the emails at issue are set forth below:
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F. 321. 

*** (Please Sign in to Your Account) E-File With Direct Deposit for 

Your Fastest Refund 

Received: Friday, January 15, 2021 7:26 PM 

From Turbo Tax TurboTax@em1.turbotax.intuit.com 

To: 

~ i";i'rbotax 

You're well on your way 

Sq,1b"i ~..,lhyci ~rl0•nd? l1i111 ,_.,,_~...,1C'ffgfl 

Turbo Tax is now accepting e-file 

Thefe',..,,._..,, .. ve<,.__.....,....,)'OU ... fiol<>day 

~ choose, dnct depo5i:. l.e(s frll!h up tar FREE. 

Stg,tbdin> 

[ 
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F. 323. 

The asterisk in GX477, displayed in F. 323 above, next to the reference to “simple returns 

only,” was tied to lengthy disclosure language toward the bottom of the email, the material 

portion of which is set forth below: 

llflb. Wll\lfl 

~ turbotax 

0 TAXIS DUli EFORli MIDNIGHT! 

S19n 1n w,th your User ID 
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F. 323. Other emails in the record also included asterisks adjacent to “simple returns only.” 

F. 319-322 (GX171, GX172, GX181, GX480).19F

20 

 

Many of the email advertisement exhibits in the record did not reference a specific 

TurboTax product in the subject line or in the body of the email, and/or failed to conspicuously 

display the specific product name upfront in the email. F. 332. Moreover, email advertisements 

that contained a reference to the TurboTax AbsoluteZero promotion tended to place and 

highlight the AbsoluteZero reference in a way that reinforced the claim that filing with TurboTax 

cost “$0.” F. 333. In addition, in the email advertisement exhibits in the record that contained 

language such as “1040EZ/A” or “simple tax returns only” or “for simple tax returns,” the 

language was presented in a significantly smaller and/or lighter, less noticeable font, in 

comparison to the words or images “free” or “$0.” F. 334. A number of email advertisements 

included what appear to be color-contrasted hyperlinks, including one embedded in the phrase 

simple returns only and others directing consumers to “guarantees, disclaimers and other 

important information.” F. 322, 329, 335. 

20 Complaint Counsel’s investigator, without explanation, provided email advertisement exhibits GX171, GX172, 

GX181 and GX480 in partial form only, omitting potential text that may have been associated with the asterisks 

shown on those exhibits next to the phrase “simple tax returns only.” F. 318, 324-325. It is being inferred that the 

asterisks in those email advertisements would have been associated with language materially the same as the 

language in GX477, which was provided in full. F. 326-327.

mtu1t 

legal 

Privacy 

~ 

~ tu,bowt " qood<boolcs E)mont ~IQrma maik~ 

·A SIIT1JM! tlx re11m is Foon 1040 ody. OO¥ered m 

TI.SboTax Free Ed:ion. Twbo Tax live Basic. and wboT ax live 

Ft.I 5efvioe Bas,c:: 

. W-2inoome 

· l.m:ed iRerest and dMdend income n!p0l1l!d on a 1099-INT 

or1-.CXV 

. aa.,q the szandard deducbon 

· Earned lnoome Tax Qecil (EiC) 

· Chldtaxa"l!<izs 

. Sluder& loan ~ 
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While the email advertisements at issue contain conspicuous representations of “free,” 

extrinsic evidence will be considered to determine the likely effect of the advertisements’ 

disclosures on the overall net impression conveyed. 

iv. Paid Search Advertisements

Paid search advertising refers to advertisements whose placement on an online search 

engine results page is based on an auction marketplace. F. 337. Intuit bids on a variety of 

keywords in an auction marketplace, and if Intuit is the highest bidder, a TurboTax advertisement 

would appear at the top of the online search results page when consumers search for those 

keywords. F. 337. Intuit writes and approves the text of the advertisement, including the text of 

the headline and sub-headline that appear in the online advertisement. F. 337. In TY 2021, over 

20% of consumers who arrived at the TurboTax website did so after clicking on paid search 

advertising. F. 338. Consumers who clicked on paid search advertisements for TurboTax Free 

Edition were taken directly to the TurboTax Free Edition page on TurboTax’s website, referred 

to as a “landing page.” F. 345. 

Intuit’s paid search advertisements varied over time between TY 2019 and TY 2021. See

F. 339-344. For TY 2019, in response to a Google online search for “free file” on July 10, 2020, 

the advertisement shown in relevant part below appeared, with the headline, “TurboTax® Free 

Tax Filing – E-file Your Taxes For Free.” 

F. 340. A substantially similar advertisement appeared, also on July 20, 2020, in response to a 

Google online search for the phrase “free file taxes ONLINE.” F. 339 (“TurboTax® Official Site 

– 100% Free Online Tax Filing.”). Neither of the foregoing paid search advertisements specified 

a TurboTax free product or referenced any qualifications for the offer, such as “simple returns 

only.” 

A Google online search on January 11, 2021 for the phrase “IRS taxes for free” produced 

a TurboTax advertisement with the headline: “$ 0 Fed. $ 0 State. $ 0 to File. – TurboTax® 

Ad • turbotax.intuit.com/ free/efile • 

Turbo Tax® Free Tax Filing - E-file Your Taxes For Free 

Fast. Easy And 100% Free Tax Filing With Turbo Tax®. $0 Federal. $0 State. $0 To File. Over 50 

Million Americans Can File With Turbo Tax® Free Edition. Get Your Taxes Done Today. 
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Official Site” but with a sub-headline noting qualifications for the offer, including “Free For 

Simple Tax Returns Only.” F. 341. The relevant portion of the advertisement is set forth below: 

F. 341. 

An advertisement in response to a Bing online search on March 31, 2022 for the phrase 

“file my taxes for free” returned an advertisement with the headline “TurboTax® Free Edition | $ 

0 Fed. $ 0 State. $ 0 To File,” and sub-headline stating, “Free For Simple Tax Returns Only with 

TurboTax® Free Edition,” as shown in the relevant portion printed below: 

F. 342. Substantially similar advertisements for TY 2021 were provided in response to the same 

or similar online searches in Google. F. 343-344. 

Intuit’s paid search advertisements for TY 2019 contain headlines and sub-headlines that 

expressly convey that the recipients of the advertisement can file their taxes for free with 

TurboTax (i.e., “TurboTax® Free Tax Filing – E-file Your Taxes For Free. . . . Fast, easy and 

100% free”). Alternatively, to the extent the claims are not clearly express claims, a facial

analysis of these advertisements supports the conclusion that at least a significant minority of 

reasonable consumers would take away the message that they can file their taxes for free with 

TurboTax. 

Intuit’s paid search advertisements for TY 2020 and TY 2021 maintain the unequivocal 

headline that TurboTax tax filing is free (“$0 Fed. $ 0 State. $ 0 to File”), but attempt to qualify 

that message in a sub-headline referencing “for simple returns only.” The font size and color of 

Ad • turbotax.intuit.com/free/taxes • 

$0 Fed. $0 State. $0 to File.· Turbo Tax® Official Site 

Free For Simple Tax Returns Only. Find Even More For Complex Tax Situations w/ TurboTax®. 

File Your Federal And State Tax Forms With Turbo Tax® & Get Every Dollar That You Deserve. 

Turbo Tax Live Premier. File With Confidence. Turbo Tax Live Deluxe. 

Turbo Tax• Free Edition I $0 Fed. $0 State. $0 To File. 

httpsJ/turbotax.1ntuit.com/fr11/taxu , 236K• Faceboo< folowers 

NJ FrH For 5nl>leTu Returns Ont,, Wrth Turbo Tu• Frtt Ed1t,on Get Your 

Mu Rtfund Today Fru Onl&ne TH Fling W/ Am«,ca'I Ltad• I, TIHI Gtt Your Max Rtlund 

With Turbo Tait 

You hovov.sited lntun com3tmoolnb st 7 days 

Tax Services .. ,o 

TurboTax- lkllimtod. Real ~ Help 

wrt>ow.111tuilcom from $249.00 

Ll(t4'tl'Urr,U""'J't~,ot1t lt-r ... tf0t)IW 
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this purported disclosure, however, makes the disclosure inconspicuous in relation to the bold, 

larger headline of the advertisement. Moreover, as in the case of Respondent’s other 

advertisements using the phrase “simple returns only,” the material terms of this purported 

limitation on the “free” offer are not disclosed. In addition, in interpreting the meaning of the 

advertisements to a consumer, it is relevant that a consumer conducting an Internet search for 

“free tax filing,” or similar words, is likely seeking that service, and potentially more primed to 

focus on the “free” representations, which are responsive to the search, rather than on less 

conspicuous qualifications. Furthermore, the impact of adding the product name Free Edition to 

the TurboTax headline in Intuit’s TY 2021 paid search advertising, as a limitation or

qualification on the “free” offer, is not apparent. Indeed, the name Free Edition arguably 

reinforces the “free” claim presented in the headline. For the foregoing reasons, a facial analysis 

supports the conclusion that at least a significant minority of reasonable consumers would take 

away the impression that they could file their taxes for free online with TurboTax. Nevertheless, 

extrinsic evidence relevant to the potential effect of the purported disclosures of “simple returns 

only” and the Free Edition product name on the message conveyed to consumers will be 

considered.

b. Extrinsic Evidence

As held above, a facial analysis demonstrates that Respondent disseminated 

advertisements that represented either expressly or by strong implication that consumers could 

file their taxes online for free using TurboTax. Moreover, in most cases, the purported limiting 

disclosures, such as a limitation to TurboTax Free Edition or to “simple tax returns,” where these 

disclosures appeared at all, were inconspicuous or ambiguous, and therefore insufficient to alter 

the dominant “free” message of those advertisements. While extrinsic evidence is unnecessary to 

support the foregoing conclusions, relevant extrinsic evidence submitted by the parties has been 

considered. See POM, 2013 WL 8364895, at *16 (considering extrinsic evidence submitted by 

the parties, “[e]ven though only a facial analysis [was] necessary to determine” that the 

respondent “made the claims alleged by Complaint Counsel”). 
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Particularly relevant is evidence bearing on the question of how consumers would 

interpret the purported limitations, where such limitations, especially the phrase “simple returns 

only,” were visible and/or communicated audibly. 

i. Standards for Acceptable Extrinsic Evidence

Extrinsic evidence that is relevant to interpreting advertising claims includes, but is not 

limited to, “reliable results from methodologically sound consumer surveys.” Kraft, 1991 WL 

11008502, at *121; Cliffdale, 1984 WL 565319, at *37. In determining whether a consumer 

survey is methodologically sound, the Commission will look to whether it “draw[s] valid 

samples from the appropriate population, ask[s] appropriate questions in ways that minimize 

bias, and analyze[s] results correctly.” Thompson Med., 1984 FTC LEXIS 6, at *315. “The 

Commission does not require methodological perfection before it will rely on a copy test or other 

type of consumer survey, but looks to whether such evidence is reasonably reliable and 

probative.” Stouffer, 1994 FTC LEXIS 196, at *10-11 (citing Bristol-Myers Co., 85 F.T.C. 688, 

1975 FTC LEXIS 218, at *127 (1975)). “Flaws in the methodology may affect the weight that is 

given to the results of the copy test or other consumer survey.” Id. at *11. 

As summarized in Thompson Medical, in addition to consumer surveys addressing the 

specific advertisements at issue, relevant extrinsic evidence includes evidence “showing how 

consumers might ordinarily be expected to perceive or understand representations like those 

contained” in the advertising at issue, such as “principles derived from market research, as 

expressed by marketing experts, which show that consumers generally respond in a certain 

manner to ads that are presented in a particular way, and presume that consumer reactions to a 

particular ad before us would be consistent with the general response pattern.” 1984 FTC LEXIS 

6, at *315-16. Such marketing principles, which may be cited by marketing expert witnesses, are 

to be derived “from research presented in references generally accepted as reliable in the field of 

marketing.” Id. at *316. 

ii. Intuit’s Market Research

Market research performed by or for Intuit in the ordinary course of business shows that 

at least a significant minority of consumers believe that they can file their taxes for free with 
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TurboTax. E.g., F. 453, 457-458, 461-462. For example, an Intuit study from TY 2018 to 

measure brand attributes and “awareness of free” showed that 22% of consumers were confident 

that TurboTax Free Edition is free. F. 462. A 2019 marketing research report conducted by Intuit 

evaluating consumer perception found that “[f]ree has been a key lever to drive double digit 

growth” and showed that 49% of consumers were confident that TurboTax Free Edition is “truly 

free.” F. 461. 

In addition, Intuit has conducted copy testing of its advertisements, in the regular course 

of business, for the purpose of evaluating consumer perception of and reaction to its advertising 

(the “copy”). F. 446. This copy testing supports the conclusion derived from the facial analysis 

that Respondent’s advertising clearly communicated to viewers that they could file their taxes for 

free using TurboTax. For example, a December 2018 copy test found that 73% of the 250 survey 

respondents took away from the “Spelling Bee” television advertisement the message: “That [I]

can file my taxes for free.” F. 457. A September 2020 copy test involving 200 participants 

exposed control group participants to the TurboTax brand name and exposed test group 

participants to one of four TurboTax Free Edition advertisements that were being considered for 

the TY 2020 filing season. F. 447, 449. The advertisements shown to the test group participants 

were versions of television advertisements created in connection with Intuit’s “free, free, free” 

marketing campaign, in which nearly every word in the advertisement consisted of the word 

“free.” F. 449. After exposure to one of the four advertisements, the test group participants were 

asked whether they agreed with a variety of brand attributes of TurboTax, including whether

TurboTax “[a]llows me to file my taxes for free.” F. 451. While only 33% of control group 

participants agreed with that statement, between 45% and 57% of test group participants did. 

F. 452-453. That increase of up to 24 percentage points compared to the control group is a 

significant increase, which even Intuit tagged as “[s]ignificantly different from benchmark.” 

F. 453.

Respondent discounts the significance of the TY 2018 and TY 2020 copy testing because

most of the advertisements tested did not include the written disclosures upon which Respondent 

relies as disclosing limitations on the free offer, such as the TurboTax Free Edition name or the 

phrase “simple returns only.” However, the Spelling Bee advertisement, which was tested as part 

of the TY 2020 copy testing, did include written disclosures. F. 450. Yet, significantly, 48% of
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survey respondents exposed to that advertisement still agreed with the statement that TurboTax 

“[a]llows me to file my taxes for free.” F. 453. This supports the inference that the disclosures in 

the Spelling Bee advertisement did not alter consumers’ perception that they could file their 

taxes for free with TurboTax. 

iii. Novemsky Survey 

Complaint Counsel offers a consumer perception survey conducted by its expert witness, 

Professor Nathan Novemsky (the “Novemsky Survey”).20F

21 The purpose of the Novemsky Survey 

was to assess, through the use of open and closed ended questions, the impressions that 

consumers who were ineligible for free filing with TurboTax had regarding their ability to file 

their federal taxes for free using TurboTax. F. 394, 404, 412.21F

22

Survey respondents consisted of two groups: Group A consisted of respondents who

reported that they had not filed their income taxes using TurboTax within the past three years; 

and Group B consisted of respondents who reported that they had filed their taxes using a paid 

version of TurboTax within the past three years. F. 408-409. None of the survey respondents 

were eligible to use TurboTax Free Edition at the time of the survey. F. 403.22F

23 Professor 

21 Professor Nathan Novemsky is well qualified to offer opinions in this case. Dr. Novemsky holds a Ph.D. and 

M.A. in Social Psychology from Princeton University and is a tenured professor of consumer psychology and 

marketing at Yale University, where he has been teaching for over 20 years. GX303 (Novemsky Expert Report) 

¶¶ 1, 12, Appendix A. Professor Novemsky’s research has focused on individual decision-making – the manner in 

which individuals acquire and process information when forming perceptions and preferences, the effect of product 

attributes (such as price and product features) and information presentation on consumers’ purchase and 

consumption decisions, and the effect of different marketing mix activities (such as advertising) on consumers’ 

buying decisions and consumer experiences. Id. ¶ 12. Professor Novemsky has conducted, supervised, or evaluated 

hundreds of surveys, including many related to consumer behavior and information processing and his research has 

been published in leading marketing and psychology journals. Id. ¶¶ 12, 16.

22 The two open-ended questions were: “What is your understanding about whether or not there is a cost to filing 

your own income taxes using TurboTax online software?” and “You may have already said this above, but please 

tell us again, in your understanding, who, if anyone, can file their taxes for free using TurboTax online software?” 

F. 422. The closed-ended question was: “You may have already said this above, but please tell us again, which of 

the following best describes your understanding of filing your 2021 income taxes for free using TurboTax online 

software?” F. 423.

23 Professor Novemsky screened out survey participants who could file their taxes for free with TurboTax Free 

Edition based on the criteria set forth by Intuit (taxpayers who had (i) itemized deductions, (ii) unemployment 

income reported on a 1099-G, (iii) business or 1099-NEC income, (iv) stock sales, (v) rental property income, or 

(vi) credits, deductions and income reported on other forms or schedules). F. 401, 403.
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Novemsky determined, based on the results of his consumer survey, that (1) consumers who 

were ineligible for the TurboTax Free Edition nevertheless believed that they could file their 

taxes for free with TurboTax; (2) the source of most of these consumers’ false belief was either 

TurboTax advertising or the TurboTax website (or both); and (3) a substantial portion of 

consumers who did not meet the TurboTax Free Edition eligibility criteria for simple returns 

nevertheless had the impression that they did have a simple return. GX303 (Novemsky Expert 

Report) ¶¶ 8-10.

Respondent argues that the Novemsky Survey is unreliable and should be given no 

weight. Regarding consumers’ expressed belief that they could file for free with TurboTax, 

Respondent asserts that the survey structure improperly suggested this response. Respondent 

further argues that the conclusion that those asserted beliefs are connected to TurboTax 

advertising is unreliable because: the survey included persons who had not used TurboTax in the 

previous three years and who were therefore unlikely to be familiar with TurboTax’s products 

and advertising; Professor Novemsky did not show those survey respondents any TurboTax 

advertisements; and Professor Novemsky did not use a control group to test the conclusion that 

survey respondents’ beliefs were attributable to TurboTax advertising.

Having considered the arguments of the parties, the Novemsky Survey is reasonably 

reliable as proof that a significant percentage of consumers who are ineligible to file for free 

have the misimpression that they can file their taxes for free with TurboTax. F. 400, 426, 435. 

Specifically, among the Group A respondents, 52.7% believed that they could use TurboTax for 

free, even though they could not, and among the Group B respondents, 24.1% believed that they 

could use TurboTax for free, even though they could not. F. 424-425. Even though the response 

rate for Group B was lower than that for Group A, the 24.1% result for Group B nevertheless 

represents a significant minority of consumers who believed they could file their taxes for free 

even though they could not.23F

24 However, Professor Novemsky’s conclusion that the source of 

survey participants’ beliefs that they could file their taxes for free is TurboTax’s advertising or 

24 Moreover, it would be expected that Group B respondents would be less likely than Group A respondents to form 

the misimpression that they could file for free using TurboTax because the Group B respondents had recently paid to 

use TurboTax and would therefore have more familiarity with TurboTax product offerings than Group A, who had 

not recently filed their income taxes using TurboTax. F. 408-409.
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TurboTax’s website lacks a firm grounding and is not entitled to much weight, primarily because 

Professor Novemsky did not expose the survey participants to any particular advertisements or 

marketing communications and did not use a control group to test this conclusion. RX1017 

(Hauser Expert Report) ¶ 27. 

The results of the Novemsky Survey also constitute persuasive evidence that consumers 

do not accurately understand the meaning of “simple returns only” as a limitation on their 

qualification for TurboTax’s free tax filing offer. F. 400, 434, 435. The Novemsky Survey 

included the following question: “In some of its advertisements, TurboTax mentions ‘simple 

U.S. returns.’ Do you think that your 2021 income tax return meets TurboTax’s definition of 

‘simple U.S. return’?” F. 430 (emphasis in original). While none of the survey respondents in 

either Group A or Group B had “simple U.S. returns” as defined by Intuit, a substantial 

proportion nevertheless believed that they did. F. 431, 434. Specifically, among the Group A and 

Group B respondents respectively, 55% and 28.6% believed that they had a “simple U.S. return” 

even though they did not. F. 432-433. 

Respondent criticizes Professor Novemsky’s survey question regarding the phrase 

“simple returns” as failing to provide survey respondents with context for the phrase, which 

might have been in a TurboTax advertisement, such as a direction to “see details” at 

TurboTax.com or a hyperlink to additional information on the TurboTax website. However, 

neither the “see details” disclosure or the presence of a hyperlink explains the meaning of 

“simple returns.” It does not logically follow that simply exposing survey respondents to these 

elements in an advertisement would materially alter their perception of their qualification for 

“simple returns.” Moreover, Professor Novemsky’s explanations of why consumers would 

conclude they have “simple returns” are logical and persuasive. As Professor Novemsky 

explained, because the “simple returns” reference fails to include any additional details about this 

qualification (F. 436), the phrase “simple returns” invites consumers to determine the meaning of 

the phrase for themselves. F. 437. And, because the word “simple” has a pre-existing meaning, 

consumers are likely to have a preconceived notion as to what “simple” means, such that when 

asking themselves whether their tax return is “simple,” consumers feel equipped to answer using 

their own pre-existing definition of “simple” without seeking out additional information. F. 437, 

439. In addition, reasonable consumers are likely to decide that they have “simple returns” out of 
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wishful thinking and optimistic bias, because they perceive it will be advantageous for them to 

have a “simple” return. F. 438.

iv. Additional Proof of Consumers’ Perception and 

Understanding of TurboTax Free Advertising

Consumer testimony taken in this case further supports the conclusion that Respondent’s 

advertising conveyed the claim that consumers can file their taxes for free with TurboTax. 

Testifying consumers strongly associated TurboTax with its free filing claims. See F. 511, 513. 

Moreover, these consumers’ beliefs about TurboTax’s free filing offer appear to stem from 

pervasive exposure to such claims in the marketplace, as opposed to specific recollection of a 

particular advertisement. F. 513 (GX138 (Adamson (Consumer) Dep.) at 55-56 (testifying that 

TurboTax free advertising was “ubiquitous”); see also (GX125 (Beck (Consumer) Dep.) at 22

(“I’m not sure if there was any one particular thing that I remember other than the ads that they 

started doing where it would just say the word ‘free’ over and over and over again.”); GX128 

(Benbrook (Consumer) Dep.) at 53-55 (recalling “free” and “zero dollar” “repeated numerous 

times across all ads”); GX137 (DuKatz (Consumer) Dep.) at 29, 30 (recalling “vividly” a 

TurboTax advertisement “where everyone talks by just saying the word ‘free’”); GX142 

(Keahiolalo (Consumer) Dep.) at 25 (“Q: What do you know about TurboTax? [A.] TurboTax, 

it’s free. That’s all I know. They advertise as free. That’s all I know.”); GX139 (Derscha 

(Consumer) Dep.) at 58-59 (“Q: [W]hat TurboTax advertisements did you see in 2019 

specifically?” A: “Oh, lord, there were several. There were several on Facebook, several of them 

on YouTube . . . [A]t that point in time they were all over the place.”)). 

Consumer testimony further supports the conclusion that many consumers do not 

accurately understand the meaning of “simple returns only” as a limitation on their qualification 

for TurboTax’s free tax filing offer, F. 514, which is also consistent with the misimpressions as 

to TurboTax eligibility criteria found among participants in the Novemsky Survey. Consumers 

testified, for example, that they did not “know exactly” what the phrase “simple returns only” 

means, or that the phrase “doesn’t mean anything” to them. See F. 514 (GX139 (Derscha

(Consumer) Dep.) at 62 (testifying that she “wasn’t aware of the differences between like a 

simple file or anything like that”); GX137 (DuKatz (Consumer) Dep.) at 56 (testifying that the 

phrase simple tax returns “has no connotation to me because I don’t understand what is and is 
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not a simple tax return”)). Other consumer testimony showed a misunderstanding of the phrase 

or a misimpression that it applied to them. See F. 514 (GX138 (Adamson (Consumer) Dep.) at

44 (testifying that he understood “simple tax returns” to mean “if you . . . made under a certain 

amount of money, that you would not be charged by TurboTax to file your taxes”); GX139 

(Derscha (Consumer) Dep.) at 47-48 (testifying that she “thought” her “standard tax preparation” 

was a simple tax return and that she “didn’t understand” that there were “different versions of a 

standard”); GX135 (Phyfer (Consumer) Dep.) at 66-67 (testifying that she “assumed” that her tax 

return was a simple tax return), 75-76 (testifying she believed she had a simple tax return 

because “nothing had changed since the previous year” in her income); GX136 (Schulte

(Consumer) Dep.) at 70) (testifying that he interpreted “simple tax returns” to mean a “situation 

where your tax situation’s not over[ly] complicated . . . Like essentially you’re not some huge 

investor” requiring a “stack of different documents that you’re going to have to submit”)).

While Respondent asserts that Intuit’s internal testing of consumer understanding of 

“simple tax returns” found that consumers found the phrase very “easy to understand” (RFF 134 

(citing Rubin (Intuit) Tr. 1544-1546; RX304 (Intuit)), Intuit’s results do not address what 

consumers understood the phrase to mean or whether their understanding was accurate. 

Therefore, Intuit’s testing results do not contradict the substantial evidence addressed above

demonstrating that consumers do not accurately understand the meaning of “simple returns 

only,” including with regard to application of the limitation to their own tax situation. Similarly, 

Respondent’s argument that consumers are familiar with the phrase “simple returns” because it is 

used by TurboTax’s competitors and/or by the IRS (e.g., RB 9; RFF 141-142; RX1018 (Golder 

Expert Report) ¶¶ 112-113) says little or nothing about consumers’ understanding as to whether, 

or how, the phrase applies to them.24F

25

25 Respondent’s contention that “simple tax returns” is an IRS term familiar to consumers was not supported by any 

IRS evidence, such as public communications or other IRS documents. The evidence on which Respondent relies 

regarding uses of the qualification “simple returns” by TurboTax’s competitors fails to demonstrate that their 

qualification criteria are the same as those applied by TurboTax for TurboTax Free Edition. (Compare RX1018 

(Golder Expert Report) Figure 17 (H&R Block disclosure regarding “simple returns” including unemployment 

income) with Figure 27 (excluding unemployment income); RX1017 (Hauser Expert Report) ¶ 48 n.87 (noting 

qualification differences among providers of free tax preparation products)). 
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v. Brand Distinction

Respondent argues that disclosing that TurboTax’s free filing offer is limited to 

TurboTax Free Edition is sufficient to convey that the offer is qualified and not necessarily free 

for the consumer viewing the advertisement. However, even assuming the reference to TurboTax 

Free Edition in an advertisement was displayed in a reasonably conspicuous manner, the mere 

inclusion of the sub-brand does not by itself inform the consumer that the product does not 

necessarily apply to them or logically negate the dominant message in the advertising that 

consumers could file their taxes for free.

Moreover, the facts demonstrate that consumers do not necessarily internalize 

Respondent’s free offer as being for a sub-brand distinct from TurboTax. Testifying consumers, 

addressing the advertising claims at issue, referred to the TurboTax brand generally, rather than 

any sub-brand. F. 511, 513. The conclusion that consumers do not associate the TurboTax free 

tax filing offer with a TurboTax sub-brand is also supported by Intuit’s TY 2018 and TY 2020 

copy testing. Results from Intuit’s TY 2018 copy testing found that the advertisements tested, 

including the Spelling Bee copy test advertisement, “communicate the parent brand, TurboTax 

well, however, only about ~5% take away the sub brand (TurboTax Free, TurboTax Live).”

F. 459 (emphasis in original). The TY 2018 copy testing further showed that “[m]ost viewers can 

recall TurboTax, but only a handful mention the specific product name” when asked, “[w]hich 

brand do you think this ad was for?” F. 460. In the TY 2020 campaign copy testing, one group of 

participants was exposed only to the TurboTax brand name and not to any advertising copy. 

F. 449. After such exposure, 33% of this group reported agreeing with the statement that 

TurboTax “[a]llows me to file my taxes for free.” F. 452.

vi. Respondent’s Extrinsic Evidence on Advertisement 

Interpretation

Most of the extrinsic evidence proffered by Respondent does not directly address the 

meaning of the advertisements to consumers. For example, Respondent does not offer any 

consumer surveys regarding the claims conveyed or other evidence regarding consumer 

interpretation of the language used in TurboTax advertisements.25F

26 Respondent’s extrinsic 

26 As observed by the Commission in its order denying summary decision in this matter:
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evidence that is arguably relevant to assessing consumers’ understanding of Respondent’s free 

claims is addressed below.

Respondent relies on the opinion of its expert witness, Professor Peter Golder, that 

reasonable consumers understand that free offers, including free online tax preparation offers, 

have limitations, even if those limitations are not stated in the advertisements.26F

27 In support of 

this opinion, Professor Golder points to advertising campaigns such as “buy one get one free” 

(BOGO) or “free with purchase” promotions, which require a purchase in order to get a free 

product. Professor Golder also references tiered service offers, which give customers free access 

to products or content, but with limitations, such as the requirement to view advertisements in 

free versions of YouTube and Spotify, or limited features, such as with free versions of Adobe. 

RX1019 (Golder Expert Report) ¶¶ 164-165. This evidence is unpersuasive. BOGO and “free 

with purchase” offers advertise bundles of products and are thus not comparable to an 

advertisement for a standalone product as a free product, such as TurboTax Free Edition. F. 445. 

For the same reason, tiered service offerings are factually distinguishable from the free product 

advertising at issue in this case. Even if there were evidentiary support for the conclusion that 

reasonable consumers understand that a standalone free offer has qualifications, this would not 

mean that consumers necessarily understood the nature of the qualifications imposed by Intuit’s 

free offer and does not rebut the proof in the record that at least a significant minority of 

reasonable consumers did not understand Intuit’s free filing qualifications.27F

28

[M]uch of Respondent’s extrinsic evidence concerns peripheral issues – for example, whether its 

disclaimer font is similar to that used by other companies, whether consumers are comfortable 

switching between tax-preparation providers, whether TurboTax has high consumer satisfaction 

and retention rates, and whether most consumers who start in Free Edition eventually file with that 

product. This type of evidence does not address what message the ads conveyed to reasonable 

consumers and would not override findings based on a facial analysis. Conclusory statements by 

experts that consumers were not deceived based on that same peripheral evidence are similarly 

inadequate.

Intuit, 2023 FTC LEXIS 18, at *31 (citations omitted).

27 Professor Peter Golder has a B.S. in Mechanical Engineering and Ph.D. in Business Administration and is a 

professor of marketing at Dartmouth College’s Tuck School of Business. RX1018 (Golder Expert Report) ¶¶ 1-2. 

28 Respondent asserts that consumer testimony demonstrates that consumers understood that TurboTax’s free filing 

offer was not free for everyone and/or that not every taxpayer would qualify. See RFF 635. As noted above, 

however, even if there were evidentiary support for the conclusion that reasonable consumers understand that a free 

offer has qualifications, this alone would not rebut the evidentiary proof in the record, including the consumer 
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Respondent also asserts that the evidence proves consumers are skeptical of free offers 

and tend to disbelieve them as “too good to be true.” RB at 59. As proof of this skepticism, 

Respondent points to its internal market research from 2018 in which the percentage of 

consumers reporting that they were “confident” that TurboTax Free Edition was free was 22%. 

See F. 462. However, 22% is not an insignificant percentage, and this figure supports the 

conclusion that at least a significant minority of consumers takes away the impression that 

TurboTax online tax filing is free for them. Moreover, Respondent’s 2019 market research 

showed that 49% of consumers were confident that TurboTax Free Edition is “truly free,” which 

indicates that Respondent’s “free” advertisements tend to overcome skepticism regarding free 

offers. F. 461. In addition, the evidence shows that Respondent’s advertising was designed to 

overcome such skepticism, not only through the pervasive and repetitive use of the word free, 

but also through the frequent use of the word “guaranteed” in conjunction with the “free” claim. 

E.g., F. 51 (Intuit document explaining that Intuit added the language “Guaranteed” to “address 

skepticism of free, build credibility of TT Free, and drive trial”); F. 467 (Intuit document 

explaining “incorporating the word ‘guaranteed’ into the offering and changing the name from 

Federal Free Edition to Free Edition will be levers we explore to reduce that skepticism. . . . 

Customer research indicates that we can increase believability of our truly Free offering with the 

addition of ‘Guaranteed’.”). In fact, the text of the Steven Spit/Take advertisement, aired for TY 

2021, expressly addresses consumer skepticism and works to overcome it:

VOICE-OVER: Steven, did you know that TurboTax is free no matter how you 

want to file? Steven: I don’t believe that. VOICE-OVER: It’s true. Anyone with a 

simple tax return can get help from an expert, for free. Steven: That can’t be true. 

VOICE-OVER: It is and with TurboTax Live our experts will even do your taxes 

for you for free.

F. 199 (emphasis added); see also F. 67 (Boston Tea Party advertisement: SECOND 

BRITISH SOLDIER: But what if it were free to file your taxes? SECOND REVOLUTIONARY:

Like, free free? SECOND BRITISH SOLDIER: Yes, yes. You’d pay nothing. Not a thing. No 

thing. THIRD REVOLUTIONARY: Well alright then!) (emphasis added).

testimony summarized above, that at least a significant minority of reasonable consumers do not understand Intuit’s 

qualifications and/or erroneously believe that they meet Intuit’s qualifications. 
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Respondent further contends, based upon the opinion of its expert witness, Professor 

Golder, that consumers know to look for and where to find qualifications in advertisements for 

free tax-preparation products, and know how to seek out additional information elsewhere. RFF 

471, 514. However, as noted above, even if consumers were to see the disclosure limiting Intuit’s 

free filing offer to “simple returns,” the facts demonstrate that at least a significant minority of 

reasonable consumers do not accurately understand the “simple returns” limitation, including 

how it would apply to their own tax situation. 

In summary, Respondent’s extrinsic evidence, to the extent it demonstrates that some 

consumers would understand, in the abstract, that Respondent’s free tax filing offer was not free 

for everyone and/or had some qualifications, nevertheless fails to rebut the substantial proof that 

at least a significant minority of reasonable consumers would still take away the impression from 

Respondent’s advertising that TurboTax online tax filing was free for them.

2. Falsity 

According to IRS data, only about one-third of taxpayers file their taxes using a Form 

1040 without any attached schedules. Therefore, applying Intuit’s eligibility requirements, 

approximately two-thirds of taxpayers, or approximately 100 million taxpayers, are ineligible to 

file for free using TurboTax’s free tax filing product, TurboTax Free Edition. F. 36-37. For these 

taxpayers, Respondent’s advertising claim that consumers can file for free using TurboTax is 

clearly false. 

Respondent contends that the two-thirds figure is the wrong metric because many 

taxpayers file on paper or use accountants, storefront tax preparers, or other non-online filing 

options, and that the appropriate baseline is the number of taxpayers who use online tax 

preparation products. According to Respondent, only about 75 million consumers use online taxpreparation products such as TurboTax, and 38 million of these, or approximately 50.7%, have 

simple returns, as defined by Intuit. See RFF ¶ 129. Respondent’s metric fails to account for the 

possibility that taxpayers who previously used non-online filing methods might be induced to 

switch to online filing, including because of TurboTax’s advertised “free” filing offer. In 

addition, Respondent’s own documents acknowledge that only about one-third of taxpayers are 
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eligible to file for free with TurboTax, which casts doubt on the commercial significance of 

Respondent’s alternative proposed metric. F. 36 (referencing Intuit’s desire “to expand 

[TurboTax’s] free eligibility beyond the ~35% eligibility” TurboTax has). Even if Respondent’s 

smaller universe of potential online filers were accepted, the assertion that 50.7% of online filers 

– a bare majority – have simple tax returns and thus qualify for TurboTax Free Edition would 

mean that nearly half do not have simple returns and do not qualify for TurboTax Free Edition. 

Taxpayers with common tax scenarios such as mortgage deductions, stock sales, rental property 

income, charitable donations over $300, itemized deductions, unemployment income, or 

education expenses would have to use one of TurboTax’s paid products. F. 38-43. For this 

significant percentage of consumers, Respondent’s “free” advertising claim is false.

Respondent further argues that because TurboTax Free Edition is in fact free, advertising 

that TurboTax Free Edition is free is not false. However, some of the advertisements at issue do 

not mention TurboTax Free Edition and those that do, do so in small, inconspicuous lettering. 

F. 63, 227-228. Furthermore, as set forth above in section III.E.1.b.v, the facts show that 

consumers associate the free filing offer with the parent brand TurboTax, as opposed to a subbrand. 

More important, the focus in interpreting an advertisement is the overall net impression, 

not the literal truth or falsity of individual elements. Traffic Jam Events, 2021 WL 5124183, at 

*12. “[A] claim may be deceptive even though it is literally true.” Cap. Choice Consumer Credit, 

2004 WL 5149998, at *32; see also Thompson Med., 791 F.2d at 197 (“[L]iterally true 

statements may . . . be found deceptive[.]”). As held by the Commission in its order denying 

summary decision, “[i]f an ad that literally states that TurboTax Free Edition is free is written in 

a way that falsely conveys to at least a significant minority of reasonable consumers that they can 

file their taxes for free with TurboTax, the ad is deceptive.” 2023 FTC LEXIS 18, at *36. Based 

on a full consideration of the evidence presented in this case, it has been determined that much of 

Respondent’s advertising has been written in such a way as to falsely convey to at least a 

significant minority of reasonable consumers that they could file their taxes for free with 

TurboTax. 
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In addition, an advertisement, even if containing true statements, can be deceptive by 

omission. “‘The failure to disclose material information may cause an advertisement to be 

deceptive, even if it does not state false facts.’ Sterling Drug, 741 F.2d at 1154; see also Cap. 

Choice Consumer Credit, 2004 WL 5149998, at *33.” Intuit, 2023 FTC LEXIS 18, at *36. In the 

instant case, the evidence proves that Respondent’s purported disclosures as to limitations and 

qualifications for the free tax filing offer are insufficient to render the advertisements 

nondeceptive. In most advertisements, especially the television and video advertisements, the 

disclosures were too inconspicuous to be deemed to have disclosed anything effectively. To the 

extent the purportedly limiting disclosure “simple returns only” was visible in any advertising, 

with the arguable exception of Respondent’s email advertising, no material explanatory 

information was included, and the evidence proves that the phrase itself was not accurately 

understood by consumers. Thus, Respondent’s advertising was false, through affirmative 

representation and through omission.

Respondent contends that its free tax filing advertising was not likely to mislead 

reasonable consumers into a false belief that they could file for free with TurboTax because 

consumers are likely to seek out additional information regarding a free offer, particularly when 

choosing a complex product such as a tax preparation product.28F

29 Respondent argues that because 

its advertising notified consumers, in writing and at times audibly, to “see details” or “see if you 

qualify” at TurboTax.com, consumers would obtain complete information as to the terms and 

conditions of eligibility for TurboTax Free Edition on Respondent’s website, through clicking on 

various hyperlinks – such as hyperlinks for “simple returns only” – and reviewing the resulting 

“pop-up” disclosure screens. See, e.g., F. 359-364.29F

30

29 As explained above, the second element in determining whether advertising is deceptive, after assessing the claim 

conveyed, is whether those claims are false or likely to mislead consumers. Health Research Labs., 2021 WL 

5711355, at *5; California Naturel, 2016 WL 7228668, at *5. Because it has been determined that, for at least a 

significant minority of reasonable consumers, Respondent’s “free” advertising was false, it is unnecessary to 

determine whether the advertising was also likely to mislead consumers. Nevertheless, certain of Respondent’s 

arguments in this regard are addressed herein in an exercise of discretion.

30 Although it is not entirely clear, Respondent’s argument seems to imply that reasonable consumers are not 

actually misled because they are unlikely to rely on the claims presented in Respondent’s advertising, and instead 

will seek out additional information. However, the law is clear that an advertisement can be deemed misleading and 

in violation of the FTC Act even absent proof that any consumer actually relied on the claims. “The applicable 

standard is whether a claim is likely to mislead; proof that particular consumers were actually deceived is not 

required.” In re Novartis Corp., No. 9279, 1999 FTC LEXIS 90, at *46 (May 13, 1999) (citations omitted).
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Respondent’s argument is unavailing, for several reasons. First, the assertion is contrary 

to the weight of the evidence, explained above, showing that at least a significant minority of 

consumers could reasonably, and did in fact, take away from Respondent’s advertising the false 

impression that they could file for free with TurboTax. 

Second, even if some consumers may choose to conduct research in response to an 

advertising claim, the law protects those who do not: “[T]he public is not under any duty to make 

reasonable inquiry into the truth of advertising.” Resort Car Rental, 518 F.2d at 964. “Laws are 

made to protect the trusting as well as the suspicious.” FTC v. Standard Education Soc’y, 302 

U.S. 112, 116 (1937); see also FTC v. Tashman, 318 F.3d 1273, 1277 (11th Cir. 2003) (stating 

that “caveat emptor is simply not the law”); Book-of-the-Month Club, 1952 WL 104729, at *13 

(holding that “there is no obligation on the part of the customer to protect himself” against 

misleading advertising “by pursuing an advertisement to the bitter end”). 

Third, information available on Intuit’s website cannot be used to counter or cure a false 

claim contained in other advertising. See In re ECM Biofilms, Inc., 160 F.T.C. 652, 2015 WL 

13879743, at *49 n.75 (Oct. 11, 2015) (“It is well-established that an advertiser cannot ‘cure the 

deception’ in one advertisement with different statements in another.”); see also Book-of-theMonth Club, 1952 WL 104729, at *13 (“A seller may not make one representation in one part of 

his advertisement and withdraw it in another part . . .”); see Deception Statement, 103 F.T.C. at

183 (collecting cases). As a general rule, the FTC Act is deemed violated if the first contact with 

the consumer is induced through deception, “‘even if the buyer later becomes fully informed 

before entering the contract.’” Intuit, 2023 FTC LEXIS 18, at *32-33 (quoting Resort Car 

Rental, 518 F.2d at 964; see also Carter Prods., Inc. v. FTC, 186 F.2d 821, 824, 47 F.T.C. 1788 

(7th Cir. 1951); FTC v. OMICS Grp. Inc., 374 F. Supp. 3d 994, 1010 (D. Nev. 2019), aff'd 827 

F. App’x 653 (9th Cir. 2020); Fleetcor, 2022 U.S. Dist. LEXIS 142053, 2022 WL 3273286, at 

*12).

Respondent contends that the “first contact” rule expressed above, referred to as the 

“deceptive door opener” rule, should not apply to this case because online tax preparation is a 

complex product and consumers do not expect to see all qualifying details in advertisements for 
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such a product. It is true, as Respondent notes, that consumers must visit the TurboTax website 

in order to use TurboTax Free Edition, and that the website included additional information 

about the limitations and qualifications for using TurboTax Free Edition. F. 349-350, 359-379. 

However, no FTC case has held that the deceptive door opener rule does not apply to 

transactions that take place online rather than in a brick-and-mortar store. Intuit, 2023 FTC 

LEXIS 18, at *33. Free claims, in particular, have the tendency to act as “a lure. It is the bait. It 

is a powerful magnet that draws the best of us against our will ‘to get something for nothing.’” 

Book-of-the-Month Club, 1952 WL 104729, at *14. 

As authority for rejecting application of the deceptive door opener theory in this case, 

Respondent cites cases upholding the adequacy of disclosures of hotel resort fees made during an 

online booking process. These cases do not apply FTC law and also have different factual 

contexts that fail to support a conclusion that the deceptive door opener rule should not apply in 

this case. See Washington v. Hyatt Hotels Corp., No. 1:19-cv-4724, 2020 U.S. Dist. LEXIS 

101118 (N.D. Ill. June 9, 2020) (interpreting state law and finding disclosure of resort fee 

adequate, where fee was disclosed more than once and consumer was offered details during the 

online booking process prior to final confirmation); Harris v. Las Vegas Sands LLC, No. CV 12-

10858, 2013 U.S. Dist. LEXIS 185587, at *13-17 (C.D. Cal. Aug. 16, 2013) (interpreting state 

law and finding that there “simply [was] no ambiguity, and no reasonable consumer could be 

misled” by the resort fees disclosed during booking). 

Respondent principally relies on FTC v. DirecTV, Inc., No. 15-cv-1129, 2018 U.S. Dist. 

LEXIS 139192 (N.D. Cal. Aug. 16, 2018), which rejected the FTC’s argument that the deceptive 

door opener rule should apply to that case. Respondent’s reliance is misplaced, as explained 

below. 

In DirecTV, the FTC alleged that DirecTV’s advertisements for subscription satellite 

television services were misleading because they failed to adequately disclose certain material 

terms of the purchase, such as the facts that the advertised rate was for a limited introductory 

period; that there was a 24-month commitment; that early cancellation would incur early 

cancellation fees for the remainder of the commitment period; and that premium channels being 

provided were for a limited period and additional charges would be incurred unless the consumer 
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cancelled before the end of the period (the “negative option”). 2018 U.S. Dist. LEXIS 139192, at 

*3-4. 

The court found that the FTC had failed to prove that the challenged advertisements were 

misleading. The court described an advertisement that contained, on its face, extensive 

information about the terms and conditions of the satellite subscription service: 

As would be expected for a complex multi-option product like a satellite 

television subscription, the advertisement contains a large amount of information 

about various programming packages, pricing and equipment options, product 

quality and installation logistics. Roughly the middle third of the advertisement 

describes three tiers of programming packages: the Entertainment Package, the 

Choice Package and the Xtra Package. Each package includes a different number 

of channels and a different number of on demand titles . . . . 

The text box for each package includes a price “for 12 months” “after instant 

savings.” . . . The price in the red bubble has a caret next to it, which directs the 

viewer to the following bolded text in the first line of a section of disclosures in 

black text against a white background at the bottom of the page: “BILL 

CREDIT/PROGRAMMING OFFER: IF BY THE END OF 

PROMOTIONAL PRICE PERIOD(S) CUSTOMER DOES NOT 

CONTACT DIRECTV TO CHANGE SERVICE THEN ALL SERVICES 

WILL AUTOMATICALLY CONTINUE AT THE THEN-PREVAILING 

RATES.” Because most of the text in the disclosure box is not bolded, not in all 

capital letters, and not partially underlined, this information stands out visually. 

See Ex. 1119 (FTC “.com Disclosures” guidance) at 17 (“A disclosure in a color 

that contrasts with the background emphasizes the text of the disclosure and 

makes it more noticeable.”).

Id. at *23-24 (emphasis in original). 

Based on a facial analysis, the court found: 

[T]he net impression a reasonable consumer would take away from this 

advertisement is that a promotional price applies for 12 months, that a 24-month 

agreement is required, that an early cancellation fee of $20 per month will apply if 

the customer cancels before the end of the 24-month period, that services will 

continue at the end of any promotional period at the then-applicable regular rate 

unless the customer contacts DIRECTV to change the services, and that the 

customer needs to call a toll-free number or go to DIRECTV’s website to 

subscribe. These provisions are adequately disclosed throughout the 

advertisement, and while the ad contains a substantial amount of information, a 

reasonable consumer would understand that this is because subscription satellite 

television service is a complex product with a number of options for price, level 
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of service, package features and other components. . . . Because the advertisement 

adequately discloses the details that the FTC claims were omitted due to a lack of 

prominent disclosure, the net impression of the advertisement on its face would 

not be likely to mislead a reasonable consumer.

Id. at *26-27.

After concluding that neither the facial analysis nor the extrinsic evidence supported the 

misleading net impression alleged by the FTC, the court addressed, and rejected, the FTC’s 

argument that, because DirecTV induced first contact through deception, DirecTV advertising 

served as a deceptive door opener to subscriptions subsequently ordered online or by telephone, 

regardless of whether the buyer later became fully informed before entering into the subscription 

contract. Id. at *44. The court held that the deceptive door opener principle was inapplicable 

because the DirecTV advertisements at issue did not contain information that contradicted the 

actual purchase terms; and “for a complex product like subscription satellite television services, a 

reasonable consumer would understand the limitations of how information is presented in a oneor two-page flyer.” Id. 

DirecTV is readily distinguishable. In the instant case, unlike in DirecTV, it has been 

determined, based on a facial analysis and extrinsic evidence, that the net impression of 

Respondent’s advertising is that consumers could file their taxes for free with TurboTax, and that 

for approximately two-thirds of consumers, this claim is false. Moreover, in DirecTV, the court 

found that the material terms of purchase were sufficiently disclosed on the face of the 

advertisements themselves. In the instant case, the advertisements at issue did not disclose 

material facts explaining the limitations on the free offer, including facts required to understand 

the “simple returns” limitation. Unlike DirecTV, Respondent’s contention that those material 

omissions could be remedied by visiting the TurboTax website squarely implicates application of 

the deceptive door opener doctrine.

Even if the hyperlinks and related pop-up disclosures on the TurboTax website upon 

which Respondent relies were considered, the evidence fails to prove that they would be 

effective to alter or prevent consumers’ misimpression that they can file for free using TurboTax. 

Disclaiming a free claim can be particularly difficult because such claims are powerful and 

consumers are drawn to them. F. 428. Furthermore, consumers are unlikely to view information 
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behind hyperlinks. As Professor Novemsky explained, consumers tend to be cognitive misers, 

meaning they constantly try to conserve mental energy. F. 440. Thus, hyperlinks are unlikely to 

be sufficient for presenting important information such as the eligibility criteria for simple 

returns only because it requires more action than simply reading a description of the eligibility 

criteria on the face of an advertisement. F. 444. Consumer testimony taken in this case buttresses 

the conclusion that consumers do not necessarily perceive or understand the significance of 

color-contrasted hyperlinks on TurboTax’s website. F. 517. Moreover, consumers are 

particularly unlikely to click on a hyperlink or conduct further research where, as the facts here 

indicate, reasonable consumers think they already know what a “simple return” is and are under 

a pre-existing misimpression that they have one. F. 443.30F

31

Lastly, Respondent contends that the evidence fails to prove consumers were actually 

deceived by its advertising. RB at II.D.2-4; RFF IX.C-E. Based primarily on expert witness 

analysis and opinion, Respondent points to consumer satisfaction scores and retention rates; the 

rate at which consumers starting in a TurboTax free product choose to upgrade to a paid 

TurboTax product or finish in the free product, or are likely to switch to other providers; and the 

number of consumer complaints registered. Id. The law is clear that liability for deception under 

the FTC Act turns on whether a material claim is false, or likely to mislead, and not whether it 

has caused actual deception. Deception Statement, 103 F.T.C. at 172; Thompson Med., 791 F.2d 

at 197. Proof of actual deception is unnecessary to establish a violation of Section 5. Trans 

World Accts., 594 F.2d at 214. Because Complaint Counsel need not show actual consumer 

31 Complaint Counsel’s brief does not include website advertisements as among the advertisements claimed to be 

deceptive in this case. See CCB at II.C.1 (addressing advertisements from television and radio, social media and 

video advertisements, email marketing, and paid search advertisements). While Complaint Counsel asserts that 

Respondent’s advertising in other media serves to lure consumers to the TurboTax website, where advertisements 

there “contribute” to the false impression created by Intuit’s other challenged advertising, CCB at 17-19, Complaint 

Counsel’s challenge to Respondent’s website is primarily defensive, focused principally on rebutting Respondent’s 

arguments that disclosures on the website were legally and/or factually adequate to prevent consumers from 

ultimately being misled about the conditions and qualifications for TurboTax’s free filing product. CCB at III.D.3. 

Nevertheless, to the extent this case challenges Intuit’s free filing advertisements on its website independently of the 

deceptive door opener theory, i.e., encompasses the effect of those advertisements on consumers viewing them for 

the first time on the TurboTax website, such advertisements are materially similar to other advertisements found 

herein to have conveyed the false impression to reasonable consumers that they can file for free using TurboTax 

(F. 351-358), and, as shown above, at least a significant minority of reasonable consumers are unlikely to click on 

hyperlinks purportedly disclosing the meaning of “simple returns only,” due to preexisting assumptions and 

misimpressions of the meaning of the phrase. See section II.C.1.b, F.440-444. For the sake of completeness, and to 

aid in any appeal of this Initial Decision, the TurboTax advertisements, disclosures, and other material portions of 

TurboTax’s website during the tax years relevant to the case are detailed in section II.B.7. 
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injury to establish liability for deceptive advertising, evidence that some consumers were not 

injured or were satisfied with TurboTax’s products “is no defense” to liability. Cap. Choice 

Consumer Credit, 2004 WL 5149998, at *34; FTC v. Amy Travel Service, Inc., 875 F.2d 564, 

572 (7th Cir. 1989) (“Contrary to defendants’ claims, the FTC need not prove that every 

consumer was injured. The existence of some satisfied customers does not constitute a defense 

under the FTCA. . . . [T]he existence of those [satisfied] customers is not relevant to determining 

whether consumers were deceived . . . .”). In any event, the record contains ample reports from 

consumers who believed that they were eligible to file their taxes for free with TurboTax, but 

ultimately learned, to their chagrin, that they were not. F. 478-483, 488-507, 510; see also

F. 472-474. And, it has been recognized that the fact that consumers may not register a complaint 

is not indicative of a lack of consumer deception. See United States v. Lasseter, No. 3:03-1177, 

2005 WL 1638735, at *4 (M.D. Tenn. June 30, 2005) (holding that lack of consumer complaints 

submitted to the FTC did not indicate that the defendant was in compliance with the FTC Act); 

see also FTC v. Voc. Guides, Inc., No. 3:01-cv-170, 2006 U.S. Dist. LEXIS 82308, at *40 (M.D. 

Tenn. 2006) (“The meaning of a lack of complaints to the BBB is indeterminate.”); In re Brake 

Guard Prods., Inc., 125 F.T.C. 138, 1998 WL 34077346, at *247 (Jan. 15, 1998) (“The number 

of consumer complaints has no bearing on whether the public is being harmed by 

the respondents’ false or unsubstantiated claims.”).

3. Materiality

As explained above, Intuit represented to consumers that they could file their taxes for 

free with TurboTax when in fact many consumers were ineligible to do so. A representation is 

considered material if it “involves information that is important to consumers and, hence, likely 

to affect their choice of, or conduct regarding, a product.” Cyberspace.com, 453 F.3d at 1201 

(quotation omitted); FTC v. Commerce Planet, Inc., 878 F. Supp. 2d 1048, 1063 (C.D. Cal. 

2012); In re Jerk, LLC, No. 9361, 159 F.T.C. 885, 2015 WL 13021976, at *5 (Mar. 13, 2015). 

Numerous cases have found that a misrepresentation about “the cost of the product [is] an 

important factor in a consumer’s decision on whether or not to purchase a product” and “is 

undoubtedly material[.]” Commerce Planet, 878 F. Supp. 2d at 1068 (finding material a 

misrepresentation about a free kit because it goes to the cost of the product); FTC v. Johnson, 96 

F. Supp. 3d 1110, 1138, 1146 (D. Nev. 2015) (stating that the deceptive impression as to the cost 
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and nature of the product is material because it goes to the central characteristics of the product 

and induces purchase); see also Deception Statement, 103 F.T.C. at 190 (“Information has been 

found material where it concerns . . . the cost . . . of the product or service.”) (citing cases);

Book-of-the-Month Club, 1952 WL 104729, at *14 (“The meaning of the word ‘free’ remains 

more or less fixed, and that meaning is the actual cause of the purchase.”). Therefore, Intuit’s 

representation that consumers can file their taxes for free using TurboTax is material. 

In addition to case law holding that price is a material factor, there is substantial evidence 

in the record demonstrating that the claim that TurboTax is free is material to consumers. The 

importance of cost in deciding to use a tax filing service and the importance of the expectation of 

free filing with TurboTax are supported by consumer testimony taken in this case. F. 511-512. 

Moreover, Respondent’s own surveys establish the non-controversial point that price matters to

consumers. E.g., F. 471 (2019 Intuit study showing that of consumers leaving TurboTax, 

stated that price was a reason). Respondent’s expert witnesses further confirmed that price is an 

important driver in consumer choice. F. 45.31F

32 

Respondent argues that because TurboTax Free Edition is free to everyone who is 

qualified to use it, any alleged misrepresentation was not about the cost of the product, but rather 

about its qualifications, i.e., about particular consumers’ ability to use the product.32F

33 Even if the 

misrepresentations here related to eligibility to use the product, rather than to price, the question 

of whether a consumer is qualified for the advertised product is “information that is important to 

32 Respondent’s expert witness Professor John Hauser conducted a “census survey of all the various things that 

people do” when choosing a tax-preparation provider (referred to by Professor Hauser as a “Purchase Driver 

Survey”), which showed that 70.4% of survey respondents considered price an important factor in their choice of a 

tax preparation provider. F. 45. Respondent’s expert witness Professor Peter Golder similarly acknowledged that 

“price is important to consumers” and “[c]onsumers are very interested in price.” F. 45. In light of the foregoing, 

purported survey findings offered by Respondent’s expert witness, Rebecca Kirk Fair – that the price of tax-filing 

products, including out-of-pocket costs, is not the primary driver of consumers’ choice of a product – is entitled to 

little weight. (RX1555 (Kirk Fair (Intuit) Trial Dep.) at 42, 47; RX1016-A (Kirk Fair Expert Report) ¶ 36, Figure 4). 

It is not necessary for cost to be the primary factor in a consumer’s purchase decision; it is sufficient if it is a factor 

that is important, and/or likely to affect the consumer’s decision.

33 Respondent characterizes Complaint Counsel’s materiality argument to be that “the alleged deception was 

material because consumers were drawn to the TurboTax website by the challenged ads and thus wasted time, effort, 

and in some cases money, amounting to harm that ‘can’t be remedied by subsequent disclosures.’” RB at 99. This is 

inaccurate. In fact, Complaint Counsel argues that the claim that TurboTax is free is material because it is an 

important factor in deciding to use a product. See CCB at III.C. As shown above, the record amply supports that 

position. 

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[the] consumer[] and, hence, likely to affect their choice of, or conduct regarding, [the] product.” 

Cyberspace.com, 453 F.3d at 1201 (quoting Cliffdale, 1984 WL 565319, at *37). “Indeed, a 

product has no ‘efficacy’ for a consumer who is ineligible to use it.” Intuit, 2023 FTC LEXIS 18, 

at *40. “Information has been found material where it concerns the . . . efficacy. . . of the product 

or service.” Deception Statement, 103 F.T.C. at 190; Johnson, 96 F. Supp. 3d at 1138 (stating

that the deceptive impression as to the products’ efficacy is material because it goes to the central 

characteristics of the product and induces purchase). Thus, even if Intuit’s misrepresentations 

related to eligibility to use TurboTax, such information is material.

4. Conclusion 

As shown above, the evidence proves that Respondent advertised to consumers that they 

could file their taxes online for free using TurboTax, when in truth, for approximately two-thirds 

of taxpayers, the advertised claim was false. Furthermore, a false representation that a product is 

free is a material fact influencing a consumer’s choice with respect to a product. Accordingly, 

the evidence proves that Respondent engaged in deceptive advertising in violation of Section 5 

of the FTC Act.

F. Affirmative Defenses

1. First Defense 

Respondent’s First Defense is that this case is moot because “Intuit has discontinued the 

purportedly unfair and deceptive advertising campaigns . . . .” Answer, First Defense. To find 

that a case is moot “means that the defendant is entitled to a dismissal as a matter of right.” 

United States v. W.T. Grant Co., 345 U.S. 629, 632 (1953). As held in W.T. Grant, however, 

“voluntary cessation of allegedly illegal conduct does not . . . make the case moot.” Id. (citing

cases); FTC v. Affordable Media, LLC, 179 F.3d 1228, 1238 (9th Cir. 1999). Even where the 

challenged conduct has voluntarily ceased, a case is not held moot unless the defendant “can 

demonstrate that ‘there is no reasonable expectation that the wrong will be repeated.’” W.T. 

Grant, 345 U.S. at 633 (citation omitted). The Court stated that “[t]he burden is a heavy one[,]” 

and explained that lack of ongoing activity plus protestations that they would not engage in the 

conduct again “do[] not suffice to make a case moot[.]” Id. “In order to meet their burden, the 

[defendants] must show that ‘subsequent events [have] made it absolutely clear that the allegedly 
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wrongful behavior cannot reasonably be expected to recur.’” Affordable Media, 179 F.3d at 1238 

(citation omitted). 

Respondent argues that it has entered into a settlement agreement with the attorneys 

general of all 50 states and the District of Columbia and a related consent order in California 

(collectively the “State Settlement”), which Respondent argues effectively enjoin any recurrence 

of the violations found in this case. This assertion overlaps with Respondent’s contention that the 

State Settlement obviates the need for an FTC cease and desist order. As shown in the remedy 

section of this Initial Decision, infra III.G, the facts do not demonstrate either that Respondent 

has voluntarily ceased all the conduct found to be unlawful herein or that the State Settlement 

will prevent Respondent from engaging in such unlawful conduct in the future. Accordingly, 

Respondent’s mootness defense is rejected.

2. Second Defense

The Second Defense is that the requested relief is overbroad and impermissibly vague. 

Answer, Second Defense. Respondent’s arguments in support of this averred defense are limited 

to the contentions that Complaint Counsel has failed to demonstrate that any cease and desist 

order is warranted and that certain provisions of the proposed cease and desist order are 

insufficiently clear and precise. These arguments are addressed and rejected in the section on 

remedy, infra III.G.

3. Third Defense

Respondent’s Third Defense is that the Complaint is invalid because the Commission did 

not vote in favor of the final Complaint. Answer, Third Defense. Respondent does not advance 

this as an affirmative defense in its post-trial brief or reply brief and therefore it need not be 

addressed herein. See United States v. Zannino, 895 F.2d 1, 17 (1st Cir. 2010). Moreover, the 

record is clear that the Commission did vote in favor of the final Complaint. 

https://www.ftc.gov/news-events/news/press-releases/2022/03/ftc-sues-intuit-its-deceptiveturbotax-free-filing-campaign. Accordingly, this defense is without merit.
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4. Fourth Defense

Respondent argues that the doctrine of laches bars consideration of advertisements that 

are no longer used because such advertisements were known to the FTC for a considerable 

period of time prior to initiating this action. Answer, Fourth Defense. Respondent’s argument is 

rejected. “It is well settled that the United States is not . . . subject to the defense of laches in 

enforcing its rights.” United States v. Summerlin, 310 U.S. 414, 416 (1940) (citing cases); Utah 

Power & Light Co. v. United States, 243 U.S. 389, 409 (1917) (citing cases); In re Simeon 

Mgmt., Corp., 87 F.T.C. 1184, 1976 WL 180002, at *22 (Apr. 29, 1976) (“The principle of 

equitable estoppel – laches – may not be applied to deprive the public of the protection of a 

statute because of mistaken action or lack of action on the part of public officials.”); In re 

Rentacolor, No. 9163, 103 F.T.C. 400, 1984 WL 565320, *15 (Apr. 16, 1984) (holding that 

laches is not a “defense to an action brought by the government in the public interest”); see also

In re Basic Research, LLC, No. 9318, 2004 FTC LEXIS 211, at *14-15 (Nov. 4, 2004) (striking 

affirmative defense of laches); In re Metagenics, Inc., No. 9267, 1995 WL 17003144, at *2 

(F.T.C. Jan. 5, 1995) (same). 

5. Fifth Defense

Respondent asserts that “[t]o the extent the complaint seeks to impose liability for 

conduct that occurred before March 31, 2018, it is barred by the applicable statute of 

limitations.” Answer, Fifth Defense. Respondent’s assertion is without merit. “[A]n action on 

behalf of the United States in its governmental capacity . . . is subject to no time limitation, in 

the absence of congressional enactment clearly imposing it.” E. I. Du Pont De Nemours & Co. v. 

Davis, 264 U.S. 456, 462 (1924); see also United States v. Dos Cabezas Corp., 995 F.2d 1486, 

1489 (9th Cir. 1993) (“In the absence of a federal statute expressly imposing or adopting one, the 

United States is not bound by any limitations period.”). 

It is well established that “[n]o statute of limitations attaches to administrative 

proceedings brought under Section 5 of the Federal Trade Commission Act. . . .” Rentacolor, 

1984 WL 565320, at *15 (citing cases); see FTC v. Ivy Capital, Inc., 2:11-CV-283, 2011 WL 

2470584, at *2 (D. Nev. June 20, 2011) (“A defendant may not assert a statute of limitations 

defense against the United States government unless the statute in question contains an express 
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limitations period.”); see also FTC v. Instant Response Sys., LLC, 13-Civ-00976, 2014 WL

558688, at *3 (E.D.N.Y. Feb. 11, 2014) (citing cases). Indeed, Respondent acknowledges that 

“[S]ection 5 does not include an express statute of limitations[.]” RB at 113. Compare 15 U.S.C. 

§ 57b(d) (setting a three-year statute of limitations for claims under Section 19(a), not Section 5 

actions).

Respondent contends that even if a statute of limitations is not expressly stated in Section 

5 of the FTC Act, a three-year statute of limitation should nevertheless be applied to this case, by 

“borrowing” such a limitation period from state and federal laws that Respondent argues are 

analogous. RB at 113, citing DelCostello v. Int’l Brotherhood of Teamsters, 462 U.S. 151 

(1983). DelCostello, however, does not apply to an action brought by the FTC. As the court 

observed in FTC v. 4 Star Resolution, in which the court struck a statute of limitations defense in 

a case brought under the FTC Act: “DelCostello stands for the proposition that where no 

applicable statute of limitations is found in federal civil law, an analogous suitable statute may be 

borrowed. The actions at issue in that case were brought by individual employees against their 

employers and unions, not by the United States Government.” FTC v. 4 Star Resolution, LLC, 

No. 15-cv-112S, 2015 WL 7431404, at *2 (W.D.N.Y. Nov. 23, 2015) (citing, inter alia, SEC v. 

Lorin, 869 F. Supp. 1117, 1127 (S.D.N.Y. 1994) (holding that the practice in civil law of 

“borrowing” a limitations period from analogous statutes does not apply where the government 

is enforcing a public right and Congress is silent on a limitations period)). 

6. Sixth Defense

Respondent asserts that statements and actions of the Chair of the Commission indicate 

prejudgment of this case, in violation of Intuit’s Fifth Amendment due process rights to 

adjudication before a neutral arbiter. Answer, Sixth Defense. Respondent bases this assertion on 

Chair Khan’s March 29, 2022 retweet of the FTC press release announcing the filing of this 

action and on Chair Khan’s statements at an April 22, 2022 antitrust conference. This argument, 

based on these two statements, has already been considered in this case and determined to be 

without merit. In re Intuit Inc., No. 9408, 2022 FTC LEXIS 92, at *11-13 (Nov. 7, 2022) 

(holding that Chair Khan’s retweeting of an FTC press release and factual statements that the 

FTC had brought a lawsuit alleging deception did not indicate any prejudgment of the merits of 
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this case); Intuit, 2023 FTC LEXIS 18, at *49 (“[T]he prejudgment argument asserted is without 

merit.”). Accordingly, the Sixth Defense is rejected.

7. Seventh Defense

Respondent argues that the structure of the FTC as an independent agency violates the 

doctrine of separation of powers because the Commissioners and the Administrative Law Judge 

are impermissibly insulated from presidential removal. Answer, Seventh Defense. The Supreme 

Court upheld the constitutionality of removal protections for Commissioners nearly 90 years ago 

and has declined multiple times since then to alter that holding, which remains binding. 

Humphrey’s Executor v. United States, 295 U.S. 602, 625-26 (1935). With regard to the 

Administrative Law Judge, Intuit relies on Jarkesy v. SEC, in which the Court of Appeals for the 

Fifth Circuit held that the statutory removal restrictions for United States Securities and 

Exchange Commission (“SEC”) Administrative Law Judges are unconstitutional. 34 F.4th 446, 

464 (5th Cir. 2022), cert. granted, 143 S. Ct. 2688 (June 30, 2023). No court has extended the 

Jarkesy holding to the FTC. Until such precedent exists, Respondent’s argument that the FTC’s 

structure violates the separation of powers doctrine is unsupported as a matter of law. 

8. Eighth Defense

Respondent asserts that the structure of FTC administrative proceedings, in which the 

Commission both initiates and finally adjudicates the Complaint, violates Intuit’s Fifth 

Amendment Due Process right to adjudication before a neutral arbiter. Answer, Eighth Defense. 

Respondent’s argument lacks merit. Congress specifically authorized the Commission, in the 

FTC Act, to investigate, issue a complaint, determine the facts, and, if a violation is found, to 

issue a cease and desist order. 15 U.S.C. §§ 45(a)(2), (b), 46(a), 49, 57b-1. “The combination of 

investigative and judicial functions within an agency has been upheld against due process 

challenges, both in the context of the FTC and other agencies.” Gibson v. FTC, 682 F.2d 554, 

560 (5th Cir. 1982) (citing FTC v. Cinderella Career & Finishing Sch., Inc., 404 F.2d 1308, 

1315 (D.C. Cir. 1968); Pangburn v. CAB, 311 F.2d 349, 356 (1st Cir. 1962); FTC v. Cement 

Inst., 333 U.S. 683, 700-03 (1948); Withrow v. Larkin, 421 U.S. 35, 47-57 (1975)). 
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In Withrow v. Larkin, the Supreme Court rejected the proposition that the combination of 

prosecutorial and adjudicative functions, “without more,” “necessarily creates an 

unconstitutional risk of bias in administrative adjudication” that offends due process. 421 U.S. at 

47, 58. Respondent argues that “evidence of case-specific prejudgment” falls under an exception 

noted in Withrow for “special facts and circumstances” that make the risk of unfairness 

“intolerably high.” RB at 118 (citing Withrow, 421 U.S. at 58). This argument is without merit

because the underlying “prejudgment” claim has previously been rejected. Intuit, 2022 FTC 

LEXIS 92, at *11-13; Intuit, 2023 FTC LEXIS 18, at *49.

9. Tenth Defense33F

34

Respondent asserts that Congress’ giving the FTC plenary authority to choose whether to 

litigate claims in federal court or by administrative adjudication constitutes an unconstitutional 

delegation of legislative authority.34F

35 Answer, Tenth Defense. Under the nondelegation doctrine, 

Congress may not delegate “powers which are strictly and exclusively legislative.” Gundy v. 

United States, 139 S. Ct. 2116, 2123 (2019).

The FTC Act “permits the Commission to use both its own administrative proceedings 

(set forth in § 5 of the Act) and court actions in exercising [its] authority” to prevent unfair or 

deceptive acts or practices. AMG Cap. Mgmt., LLC v. FTC, 141 S. Ct. 1341, 1345 (2021). 

Respondent argues, based on the Fifth Circuit’s recent opinion in Jarkesy, supra, that Congress 

34 Respondent’s Answer includes as its Ninth Defense that the Commission’s procedures violate Intuit’s right to 

procedural due process under the Due Process Clause of the Fifth Amendment. Respondent does not advance any 

argument in support of this defense in its post-trial brief or reply brief and therefore it need not be addressed. 

Zannino, 895 F.2d at 17. To the extent Respondent’s procedural objections are encompassed by those raised in 

connection with its Sixth, Seventh, Eighth, and Tenth defenses, they have been addressed and resolved herein. 

35 Respondent’s reliance on Oceanic Steam Navigation Co. v. Stranahan, 214 U.S. 320, 339 (1909) – for the 

proposition that the Supreme Court has held that the power to choose whether to assign disputes to agency 

adjudication or to an Article III tribunal is “peculiarly within the authority of the legislative department” – is 

misplaced. As an initial matter, the words quoted by Respondent are the Supreme Court’s reframing of an argument 

made by one of the parties: “It is insisted that the decisions just stated and the legislative practices referred to are 

inapposite here, because they all relate to subjects peculiarly within the authority of the legislative department of the 

Government, and which, from the necessity of things, required the concession that administrative officers should 

have the authority to enforce designated penalties without resort to the courts.” Id. (emphasis added). The Supreme 

Court rejected that argument and upheld Congress’ delegation of authority to the Secretary of Commerce and Labor 

to deny entry to a vessel and to impose a fine. Id. at 332, 343 (holding that there is “no doubt of the right [of 

Congress] to endow administrative officers with discretion to refuse to perform the administrative act of granting a 

clearance as a means of enforcing the penalty which there was lawful authority to impose”).
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violated the nondelegation doctrine by giving the FTC “unfettered discretion” to decide whether 

to bring cases administratively “instead of in an Article III court . . . .” RB at 121 (quoting 

Jarkesy, 34 F.4th at 461, 462). Complaint Counsel argues that a Commission decision whether to 

pursue an enforcement action in federal court or by administrative proceeding is not a legislative 

function, but constitutes a “forum choice,” which is a classic exercise of prosecutorial discretion. 

In making choices about whether and how to enforce the laws it is charged by Congress 

with enforcing, the Commission does not exercise legislative power; instead, it exercises 

enforcement discretion – a traditional executive power. See TransUnion LLC v. Ramirez, 141 S. 

Ct. 2190, 2207 (2021) (“[T]he choice of how to prioritize and how aggressively to pursue legal 

actions against defendants who violate the law falls within the discretion of the Executive 

Branch . . . .”); United States v. Nixon, 418 U.S. 683, 693 (1974) (stating that “the Executive 

Branch has exclusive authority and absolute discretion to decide whether to prosecute a case”); 

Heckler v. Chaney, 470 U.S. 821, 832 (1985) (noting that a federal prosecutor’s decision not to 

indict a particular defendant “has long been regarded as the special province of the Executive 

Branch, inasmuch as it is the Executive who is charged by the Constitution to ‘take Care that the 

Laws be faithfully executed’” (citation omitted)). Furthermore, the Supreme Court has held that 

Congress did not violate the nondelegation doctrine by enacting two criminal statutes with 

“different penalties for essentially the same conduct” and leaving federal prosecutors with 

“discretion to choose between” them. United States v. Batchelder, 442 U.S. 114, 121, 124 

(1979). 

Jarkesy, an SEC case, is currently on appeal to the Supreme Court. Under current 

Supreme Court precedent, Respondent’s unconstitutional delegation of legislative authority 

argument is unavailing. 

G. Remedy

1. Overview

As held above, the evidence proves that Respondent engaged in deceptive advertising in 

violation of Section 5 of the FTC Act. Upon finding such violation, the appropriate remedy is to 

issue an order to cease and desist from such practice. 15 U.S.C. § 45(b) (directing that, upon 
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finding a violation of Section 5, the Commission “shall issue” an order to “cease and desist from 

. . . such act or practice”); FTC v. National Lead Co., 352 U.S. 419, 428 (1957). Courts have 

long recognized that the Commission has wide discretion in fashioning an appropriate remedial 

order, subject to the constraint that the order must bear a reasonable relationship to the unlawful 

acts or practices found to exist. See, e.g., FTC v. Colgate-Palmolive Co., 380 U.S. 374, 394-95 

(1965); FTC v. Ruberoid Co., 343 U.S. 470, 473 (1952); Jacob Siegel Co. v. FTC, 327 U.S. 608, 

611, 613 (1946). The terms of the order must also be sufficiently “clear and precise” that they 

may be understood by those against whom they are directed. Colgate-Palmolive, 380 U.S. at 392 

(quoting Cement Institute, 333 U.S. at 726). 

Complaint Counsel submitted a proposed cease and desist order with its Post-Trial Brief 

(“Proposed Order”). In summary, the Proposed Order prohibits Respondent from 

misrepresenting in its “advertising, marketing, promoting, or offering for sale of any goods or 

services” any material fact, “expressly or by implication,” including cost and various conditions 

for use (Section I, II); and requires Respondent to refrain from representing that a good or 

service is free, unless (A) the good or service is free for all consumers or; (B) all terms and 

conditions for receiving the free good or service are set forth “Clearly and Conspicuously” 35F

36 at 

the outset of the offer “so as to leave no reasonable probability that the terms of the offer might 

be misunderstood” (Section I.A, B) (emphasis added). In addition, “if the goods or services are 

not Free for a majority” of United States taxpayers, this fact must be “disclosed Clearly and 

Conspicuously” at the outset (Section I.C). The Proposed Order also includes various 

acknowledgements (Section III); compliance reporting requirements (Section IV); recordkeeping 

requirements (Section V); and compliance monitoring requirements (Section VI). 

Respondent objects to the Proposed Order. Respondent first asserts that it is unnecessary 

to issue any cease and desist order because Intuit has ceased the advertising at issue in this case 

and will not engage in such advertising in the future. Respondent argues that a cease and desist 

order is designed to prevent illegal practices in the future, not to punish past conduct, 36F

37 and that 

36 “Clearly and Conspicuously” is defined in detail in the definitions section of the Proposed Order. In general, the 

phrase “means that a required disclosure is difficult to miss (i.e., easily noticeable) and easily understandable by 

ordinary consumers[.]” Proposed Order, Definition A.

37 See, e.g., Ruberoid Co., 343 U.S. at 473; Cement Institute, 333 U.S. at 706.
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Complaint Counsel has failed to meet its burden of proving a “cognizable danger of recurrent 

violation.” RB at 102 (citing W. T. Grant, 345 U.S. at 633). Respondent further objects to certain 

provisions of the Proposed Order. These arguments are addressed below.

2. Necessity of Order

a. Applicable Legal Principles

It is well established that the “power to grant injunctive relief survives discontinuance of 

the illegal conduct.” W. T. Grant, 345 U.S. at 633; FTC v. Citigroup Inc., No. 1:01-CV-607, 

2001 WL 1763439, at *3 (N.D. Ga. Dec. 27, 2001) (“‘The fact that illegal conduct has ceased 

does not foreclose injunctive relief.’” (quoting SEC v. Koracorp Indus., Inc., 575 F.2d 692, 698 

(9th Cir. 1978))); In re Benco Dental Supply Co., No. 9379, 168 F.T.C. 415, 2019 WL 5419393, 

at *75 (Oct. 15, 2019) (Initial Decision), decision of the Commission pursuant to 16 C.F.R. 

§ 3.51(a).37F

38 Thus, “voluntary cessation of an illegal practice, even where proven, does not by 

itself render the entry of a cease and desist order inappropriate.” Benco, 2019 WL 5419393, at 

*75; ITT Cont’l Baking Co. v. FTC, 532 F.2d 207, 222 n.22 (2d Cir. 1976); Oregon-Washington 

Plywood Co. v. FTC, 194 F.2d 48, 51 (9th Cir. 1952). Where there has been a voluntary 

cessation of challenged conduct, Complaint Counsel “‘must satisfy the court that relief is 

needed.’” Benco, 2019 WL 5419393, at *75 (quoting W. T. Grant, 345 U.S. at 633). This 

requires “demonstrating that ‘there exists some cognizable danger of recurrent violation, 

something more than the mere possibility . . . .” Benco, 2019 WL 5419393, at *75 (quoting W.T.

Grant, 345 U.S. at 633); SCM Corp. v. FTC, 565 F.2d 807, 812-13 (2d Cir. 1977) (remanding the 

order and holding that, where challenged conduct has ceased, the FTC has the burden of proving 

cognizable danger of recurrent violation). 

Determining whether there is a cognizable danger of recurrent violation “depends ‘on a 

consideration of all the surrounding facts and circumstances[,]’” Benco, 2019 WL 5419393, at 

*75 (quoting Oregon-Washington Plywood, 194 F.2d at 50), and the court’s “discretion is 

necessarily broad . . . .” W.T. Grant, 345 U.S. at 633. “The factors ‘relevant to the question 

whether to issue an order when a respondent professes to have ceased the complained-of 

38 Rule 3.51 has since been amended, effective July 5, 2023. 88 Fed. Reg. 42872 (FTC Final Rules July 5, 2023).
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activities [are]: the bona fides of the respondent’s expressed intent to comply with the law in the 

future; the effectiveness of the claimed discontinuance; and the character of the past 

violations.’” Benco, 2019 WL 5419393, at *75 (quoting In re Int'l Association of Conference

Interpreters, 1997 FTC LEXIS 348, at *108 (Mar. 14, 1997)). 

b. Voluntary Cessation of Conduct 

The evidence demonstrates that Intuit has partially ceased the advertising challenged in 

this case, specifically, its “free, free, free” video advertising campaign. F. 534. However, the 

circumstances surrounding this partial cessation appear less than voluntary. The discontinuance 

of those advertisements did not occur until the spring of 2022, against the backdrop of thenpending deceptive advertising litigation against Intuit commenced years earlier, in 2019. These 

included cases brought by the county of Santa Clara, California and by the City of Los Angeles, 

California, as well as a consolidated consumer class action in the United States District Court for 

the Northern District of California, all claiming that Intuit’s free tax filing advertising was 

deceptive. F. 535-537. The FTC’s investigation in this case, which was conducted together with 

several state attorneys general, also commenced in 2019. F. 533. Intuit continued the challenged 

advertising until March 24, 2022, when, after meeting with the Chair of the FTC as part of 

settlement negotiations, and four days before the issuance of the FTC’s Complaint, Intuit decided 

to discontinue a portion of the challenged advertising – its “free, free, free” video advertising

campaign. F. 534. Under these circumstances, the facts weigh against a conclusion that Intuit’s 

partial cessation of some of the challenged advertising was voluntary. See Fedders Corp. v. FTC, 

529 F.2d 1398, 1403 (2d Cir. 1976) (holding that discontinuance of challenged claim was not 

“voluntary,” but resulted from defendant’s awareness of the Commission’s investigation); see 

also American Home Products, 695 F.2d at 703 n.38 (holding that discontinuance of challenged 

claims was not voluntary when claims ceased after proceedings were brought); FTC v. Sage 

Seminars, Inc., No. 95-cv-2854, 1995 WL 798938, at *6 (N.D. Cal. Nov. 2, 1995) (finding that 

“defendants’ claimed cessation of conduct [which] occurred only after defendants learned that 

the FTC had commenced an investigation into [defendant’s] practices” could “hardly be 

considered ‘voluntary’”). 
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In addition, while Intuit has discontinued what are arguably the most egregious of its 

deceptive free tax filing advertisements, Intuit has continued to make free tax filing claims across 

all media. F. 518. Respondent concedes that the current advertisements “have the same features” 

as the past advertisements. RB at 104. Respondent argues that it has enhanced its current 

disclosures as to “simple returns only” and the identification of the specific TurboTax free filing 

product by making them more prominent. RB at 104.38F

39 However, it has been held herein that the 

content of such disclosures – even where visible – omit material facts and are ineffective to 

prevent consumers viewing the advertisements from taking away the misimpression that they can 

file for free with TurboTax. See section III.E.2.39F

40 Similarly, Respondent argues that Intuit’s free 

tax filing advertisements also include the disclosure to “see if you qualify” at the TurboTax 

website and, in the case of online display and paid search advertisements, enable viewers to link 

directly to the TurboTax website landing page for the advertised free product. RB at 104. 

However, as explained in section III.E.2, information available on Intuit’s website cannot be 

used to counter or cure a misleading impression induced by other advertising; the FTC Act is 

deemed violated if the first contact with the consumer is induced through deception, even if the 

buyer later becomes fully informed. ECM Biofilms, 2015 WL 13879743, at *49 n.75 (“It is wellestablished that an advertiser cannot ‘cure the deception’ in one advertisement with different 

statements in another.”); see also Book-of-the-Month Club, 1952 WL 104729, at *13 (“A seller 

may not make one representation in one part of his advertisement and withdraw it in another part

. . .”); Deception Statement, 103 F.T.C. at 183 (collecting cases); Intuit, 2023 FTC LEXIS 18, at 

*32-33 (citing cases). 

c. Cognizable Danger of Recurring Violation 

In support of its claim that Intuit’s deceptive advertising is unlikely to reoccur, 

Respondent relies principally on Intuit’s May 4, 2022 settlement agreement with the attorneys 

general of the 50 states and the District of Columbia, which resolved an investigation of the 

attorneys general into whether Intuit’s marketing, advertising, promotion, and sale of certain 

39 Intuit’s advertisements for TY 2022 are described in F. 510-526.

40 Intuit’s current email marketing, similar to its prior email marketing, includes detailed disclosures regarding the 

“simple returns” qualification criteria, although the disclosures appear toward the end of the emails. F. 526. 
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online tax preparation products constituted deceptive or unfair business acts or practices in 

violation of the states’ consumer protection laws (the “Assurance of Voluntary Compliance”), 

and a June 25, 2022 stipulated final judgment and permanent injunction that Intuit entered into 

with the State of California (the “Consent Order”), which contains substantively the same terms 

as the Assurance of Voluntary Compliance (collectively, the “State Settlement”).40F

41 Respondent 

argues that the State Settlement constrains Intuit from engaging in the advertising practices 

challenged here and that Intuit is committed to complying with the State Settlement in the future. 

Therefore, according to Respondent, there is an insufficient basis for finding a cognizable danger 

of a recurring violation by Intuit. 

Although the State Settlement provides a number of constraints on Intuit’s conduct, as 

shown below, the State Settlement also contains substantial loopholes that fail to address or 

prevent the violations found to exist in this case. Thus, even assuming Respondent is presently in 

compliance with the State Settlement, and will continue to be in compliance, this does not 

obviate the need for a cease and desist order here. A summary of the terms of the State 

Settlement follows. 

The State Settlement generally prohibits Intuit from misrepresenting “expressly or by 

implication”: that consumers can “file their taxes for free with the TurboTax Free Edition 

Product when that is not the case”; “[a]ny other fact material to consumers concerning any tax 

preparation product or service, such as the price; total cost; any material restrictions, limitations, 

or conditions; or any material aspect of its performance, efficacy, nature, or central 

characteristics.” F. 540. The State Settlement specifically prohibits Intuit from publishing “in any 

medium (1) its ‘free, free, free’ Video Advertisements . . . and (2) Video Advertisements that are 

substantially similar in their repetition of the word free.” F. 541. 

The State Settlement requires Intuit to make disclosures in connection with any free tax 

filing claims, which vary by the type of advertising. As further described below, the 

requirements of the agreement vary depending on whether the advertisement is “space 

41 Respondent does not cite any provision of the Consent Order that incorporates the Assurance of Voluntary 

Compliance for enforcement purposes; nor does Respondent indicate that the Assurance of Voluntary Compliance 

was entered in court as a consent order. Accordingly, the term “State Settlement” is more accurate than 

Respondent’s term, “Consent Order,” to refer to the collective settlement documents. 
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constrained” or “non-space constrained”; video or non-video; or placed on the TurboTax 

website. In all cases, the required disclosures must be “clear and conspicuous” and in “close 

proximity” to the “free” representations. F. 543, 548. “Clearly and Conspicuously” is defined to 

mean that the disclosure is “difficult to miss (i.e., easily noticeable) and easily understandable by

ordinary consumers.” F 545. For example, “[a] visual disclosure, by its size, contrast, location, 

the length of time it appears . . . must stand out from any accompanying text or other visual 

elements so that it is easily noticed, read, and understood.” F. 545. Any required audio disclosure 

must “be delivered in a volume, speed, and cadence sufficient for ordinary consumers to easily 

hear and understand it.” F. 545. “Close Proximity” is defined to mean that the disclosure is “very 

near the triggering representation and that the disclosure is made simultaneously with the 

triggering representation and remains or is repeated throughout the duration of the 

Advertisement.” F. 546. This definition further provides that “disclosure made through a 

hyperlink, pop-up, interstitial, or other similar technique is not in Close Proximity to the 

triggering representation.” F. 546. 

For “space-constrained” online advertisements (other than space constrained video 

advertisements and excluding any advertisements on the TurboTax website), Intuit must disclose 

that “eligibility requirements apply.” F. 547. In addition, for covered online advertisements, 

Intuit must “(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.” F. 547. The term “Space-constrained” refers to covered 

advertisements that have “space, time, format, size, or technological restrictions that limit Intuit 

from being able” to make the required disclosures, with the burden of proving such constraint 

placed on Intuit. F. 544. 

Space-constrained video advertisements must “visually disclose, Clearly and 

Conspicuously, and in Close Proximity to the representation that the product is free: (1) the 

existence and category of material limitations on a consumer’s ability to use that free product; 

and (2) that not all taxpayers qualify for the free product.” F. 548. If the video is 9 seconds or 
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longer, the video must also verbally disclose that “not all taxpayers qualify.” F. 549. These 

provisions terminate 10 years from the date of the settlement (2032). F. 548-549.

Non-space constrained advertisements (other than those on a TurboTax website) must 

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

product is free: (1) the existence and category of material limitations on a consumer’s ability to 

use that free product; and (2) that not all taxpayers qualify for the free product.” F. 543.

For any advertisement of free tax preparation products on a TurboTax website and in 

“any space on a TurboTax Website listing, describing, offering, or promoting such free products, 

Intuit must disclose (1) Clearly and Conspicuously and 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, 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.” F. 550.

As shown above, other than the prohibition against the “free, free, free” advertisements, 

the State Settlement generally allows Intuit to continue advertising free tax filing much as it has 

in the past, but with some additional disclosures designed to convey that the free offer is not free 

for everyone, and that limitations apply. The State Settlement does not, however, require 

disclosure of any material facts explaining the limiting conditions and therefore, as the facts 

found herein demonstrate, it will not prevent at least a significant minority of reasonable 

consumers from taking away the misimpression that the free offer is actually free for them. For 

example, in non-space constrained advertisements, while Intuit must disclose that not all 

taxpayers qualify, it is sufficient to disclose “the existence and category” of the applicable 

limitations, without including any material details explaining the nature of the limitations. 

Similarly, in space-constrained advertisements (other than video) the State Settlement allows 

Intuit to disclose only that “eligibility requirements apply” and to use hyperlinks to the TurboTax 

website to lead to complete disclosures. For space constrained videos, any required audio 

disclosure need only disclose that “not all taxpayers qualify.” Space constrained online video 
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advertisements of 8 seconds or less need not contain any audible disclosures at all, and it is 

sufficient under the State Settlement that audio disclosures in longer space-constrained online 

videos state only that “not all taxpayers qualify.” Moreover, all visual and auditory disclosure 

requirements for space-constrained online videos expire after ten years. For all these reasons, 

Respondent’s contention that the State Settlement is preventing, and will continue to prevent, the 

deceptive advertising found to exist in this case is rejected. 

Based on the foregoing, the record supports a conclusion that there exists some 

cognizable danger of recurrent violation. Additional factors further support the need for a cease

and desist order in this case. Intuit remains in the tax preparation industry and continues to make 

free tax filing claims.41F

42 “An inference arises from illegal past conduct that future violations may 

occur.” Citigroup, 2001 WL 1763439, at *3 (quoting Koracorp Indus., Inc., 575 F.2d at 698). 

Furthermore, without impugning the sincerity of Intuit’s witnesses testifying to Intuit’s 

commitment not to deceive its customers – including because of Intuit’s own business incentives 

– Intuit’s own copy testing and market research put Intuit on notice that a significant percentage 

of consumers believed that TurboTax was free for them (F. 453, 457), yet Intuit continued the 

advertising despite knowing that only approximately one-third of taxpayers actually qualified for 

the free tax filing offer (F. 36-37). Intuit also continued its free claims despite years of customer 

complaints regarding expecting to be able to file for free with TurboTax, but being unable to do 

so (F. 472-507); and despite a consumer class action (among other litigation) claiming that 

Intuit’s free tax filing advertising was deceptive. F. 535-537.42F

43 Considering the totality of the 

circumstances, issuance of a cease and desist order is necessary and appropriate in this case. 

42 In support of its contention that its current free tax filing advertisements are not deceptive, Respondent points to 

copy testing of certain TY 2022 video advertisements for TurboTax Free Edition and TurboTax Live Basic in which 

between and of participants believed, after exposure to the advertisements, that TurboTax 

RB at 103; RFF 702, 709. While these are smaller percentages than shown by copy 

testing of Intuit’s “free, free, free” video advertisements (see F. 453, 457), the percentages of participants taking 

away the message that they can file for free are not insignificant percentages. Moreover, Respondent failed to 

demonstrate that participants in the TY 2022 copy test were in fact eligible for the free tax filing products in the 

advertisements. The fact that participants reported believing that their tax returns were (RFF 

705-706) is not probative of whether they in fact had “simple returns,” as defined by Intuit. In short, the TY 2022 

copy test is not proof that Intuit’s current advertisements are unlikely to mislead a viewer into believing they can file 

their taxes for free using TurboTax.

43 In support of its claim that Intuit had no intent to deceive its customers, Respondent argues that Intuit targeted its 

advertising to taxpayers between 18 and 49, because, according to Respondent, this age group is more likely to meet 

Intuit’s qualifications for “simple tax returns.” E.g., RB at 108-09. Regardless of whether Respondent’s assumption 

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Having resolved that a cease and desist order is required, the specific provisions for such 

an order are considered below.

3. Provisions of the Proposed Cease and Desist Order

Respondent challenges the specific provisions of the Proposed Order on various grounds. 

In evaluating these objections, the applicable standard, as noted above, is whether the provisions 

of the order bear a reasonable relationship to the unlawful acts or practices found to exist. See, 

e.g., Colgate-Palmolive, 380 U.S. at 394-95; Ruberoid, 343 U.S. at 473; Jacob Siegel, 327 U.S. 

at 613. In addition, the terms of the order must also be sufficiently “clear and precise in order 

that they may be understood by those against whom they are directed,” and “avoid raising 

serious questions as to their meaning and application” in the event of the need for future 

enforcement, including by way of civil penalties for an alleged violation. Colgate-Palmolive, 380 

U.S. at 392 (citations omitted). 

a. Disclosure Requirements

Respondent objects to the provisions of I.B and I.C, which require Intuit, when 

advertising goods or services as free that are not in fact free for all consumers, to disclose: “All 

the terms, conditions, and obligations upon which receipt and retention of the ‘Free’ good or 

service are contingent are set forth Clearly and Conspicuously at the outset of the offer so as to 

leave no reasonable probability that the terms of the offer might be misunderstood” (Section 

I.B); and, if the goods or services are not free for a majority of United States taxpayers, to further 

disclose this fact, clearly and conspicuously (Section I.C). These objections are addressed below.

i. Consumer Harm

Respondent first contends that disclosures beyond those presently provided by Intuit in 

connection with its “free” advertising would be redundant and unhelpful to consumers. 

Respondent relies on a survey performed by its expert witness, Professor John Hauser, referred 

as to the characteristics of the 18 to 49 age group is factually supported, the facts show that Intuit engaged in a widereaching advertising campaign that extended well beyond that limited age group, including widely distributed 

television advertisements, which could be viewed by any age group, and paid search advertising, which could be 

viewed by anyone entering the relevant search terms. See F. 52-55, 57.
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to in the record as a “Disclosure Efficacy Survey,” that purported to find that revising certain 

disclosures in a TurboTax video advertisement for free tax filing would not have a significant 

effect on whether consumers would choose TurboTax. RX1017 (Hauser Expert Report) ¶¶ 85-

87, 100. In summary, Professor Hauser altered the disclosures used by TurboTax in its video 

advertisements and webpages and created a video advertisement and webpages for a fictitious 

free tax filing product offered by a company that Professor Hauser named “Vertax.” RX1017 

(Hauser Expert Report) ¶¶ 86, 87; Hauser Tr. 853, 856-858. Specifically, Professor Hauser 

showed test group participants a video advertisement for Vertax that: extended the duration that 

written disclosures appeared on a final video screen from 5 seconds to 8 seconds; slightly 

increased the font size and brightness of the written disclosures; and added a voice-over to the 

written disclosure screen, stating “[f]or simple returns only.” RX1549 (Intuit); RX1017 (Hauser 

Expert Report) at Appendix C-1-6; Hauser Tr. 863-864. Test group participants were also shown 

webpages with disclosures altered from the TurboTax website that displayed additional “see if 

you qualify” hyperlinks, and set forth, without a hyperlink, the full qualifications for the free 

product on a “products & pricing” page. RX1017 (Hauser Expert Report) at Appendix C-1-9, C1-19, C-1-41; Hauser (Intuit) Tr. 868-869.

After exposure to the advertisement and webpages, participants in both the test group and 

the control group, who had not been exposed to the revised Vertax disclosures, were asked

whether they would consider starting their tax preparation with Vertax. RX1017 (Hauser Expert 

Report) ¶¶ 16, 92; Hauser Tr. 856. Professor Hauser found no statistically significant difference 

between the test and control group participants with regard to whether they would choose to 

begin their tax return with Vertax. RX1017 (Hauser Expert Report) ¶ 92; Hauser Tr. 870, 873-

875. Thus, according to Professor Hauser, this demonstrates that enhancements to disclosures 

related to TurboTax Free Edition eligibility are unlikely to have a material impact on consumers’ 

consideration of using TurboTax to start their tax return. RX1017 (Hauser Expert Report) ¶¶ 16, 

91; see also Hauser Tr. 979.

Respondent’s reliance on the Hauser survey as a basis for rejecting the disclosure 

requirements in the Proposed Order is unavailing. Respondent has not shown that Professor

Hauser tested the specific form or substance of the disclosures contemplated by the Proposed 

Order. For example, it does not appear that the disclosure forms tested by Professor Hauser met 
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the Proposed Order’s definition of “clear and conspicuous.” Proposed Order A.2 (requiring that, 

to be clear and conspicuous, “[a] visual disclosure, by its size, contrast, location, the length of 

time it appears, and other characteristics, must stand out from any accompanying text or other 

visual elements so that it is easily noticed, read, and understood”); see also Proposed Order 

Section I.B (requiring that unless the product or service is free for all consumers, the 

advertisement must disclose: “All the terms, conditions, and obligations upon which receipt and 

retention of the ‘Free’ good or service are contingent are set forth Clearly and Conspicuously at 

the outset of the offer”) (emphasis added). 

Respondent next contends that disclosing all material eligibility requirements for Intuit’s 

free tax filing products would harm consumers. Respondent asserts that explaining all of 

TurboTax Free Edition’s qualifications, particularly in a brief video or display advertisement, 

would confuse consumers with “information overload” that they cannot effectively understand or 

process. RB at 111. Respondent relies on testimony from TurboTax executives opining that there 

would have been consumer confusion if Intuit had included detailed eligibility criteria in its free 

product advertising. This unsupported lay opinion is unpersuasive. Respondent also cites 

testimony from expert witnesses Golder and Novemsky, in which each witness recognized only 

the hypothetical potential to overload consumers with complicated information in an 

advertisement, particularly in the context of short television advertisements. Neither witness 

conducted any formal analysis using the disclosures required by the Proposed Order. It is true 

that Professor Novemsky acknowledged on cross-examination that the eligibility requirements to 

file for free “cannot be easily communicated in an ad to a reasonable consumer.” Novemsky, Tr. 

1820 (emphasis added). However, this is not a basis for rejecting disclosures designed to prevent 

Intuit’s free tax filing advertising from being false or misleading. 

Moreover, to the extent it is difficult for Intuit to communicate effectively all material 

eligibility requirements for Intuit’s free tax filing products, the solution is to avoid claims that 

trigger the need for such clarifying disclosures. See .com Disclosures: How to Make Effective 

Disclosures in Digital Advertising (Mar. 2013), at 6, available at ftc.gov/businessguidance/resources/com-disclosures-how-make-effective-disclosures-digital-advertising (“If a 

disclosure is necessary to prevent an advertisement from being deceptive, unfair, or otherwise 

violative of a Commission rule, and if it is not possible to make the disclosure clear and 
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conspicuous, then either the claim should be modified so the disclosure is not necessary or the ad 

should not be disseminated.”).43F

44 In POM, the Commission rejected an analogous argument. 

Specifically, in POM, the evidence proved that the respondents engaged in deceptive advertising 

by claiming that their products prevented, treated, or cured diseases without adequate 

substantiation. POM, 2013 WL 8364895, at *40. The Commission rejected the respondents’ 

contention that they should not be required to substantiate their claims with randomized 

controlled studies (“RCTs”) because it was too costly and set an “impossibly high and legally 

untenable” standard. Id. at *27. In affirming the Commission’s order in POM, the District of 

Columbia Circuit adopted the Commission’s reasoning for rejecting the argument: 

We acknowledge that RCTs may be costly . . . . Yet if the cost of an RCT proves 

prohibitive, petitioners can choose to specify a lower level of substantiation for 

their claims. As the Commission observed, “the need for RCTs is driven by the 

claims [petitioners] have chosen to make.”

POM, 777 F.3d at 497. The above reasoning applies to the instant case as well. The need for 

detailed disclosures as to the terms and conditions of Intuit’s free tax filing offer is driven by the 

claim that Intuit is choosing to make. 

In addition, Respondent argues that the disclosures required in the Proposed Order “could 

also exacerbate the skepticism that reasonable consumers already bring to offers for free 

products or services” and result in fewer consumers taking advantage of the ability to file their 

taxes for free with TurboTax, to consumers’ detriment. RB at 112. Enabling consumers to take 

advantage of an offering that is in fact free for them is a laudable goal; but it does not justify 

luring other consumers who take away the misimpression that the offering is free for them. The 

answer to a concern about consumer skepticism is not to restrict consumers from receiving 

complete and truthful information about the free tax filing claim; rather, the answer is for Intuit 

44 Although the .com disclosures guide is not binding law and has not been applied herein for determining Intuit’s 

liability, a number of courts have applied the .com disclosures as a standard for determining deception. See DirecTV, 

2018 U.S. Dist. LEXIS 139192, at *24; FTC v. Direct Benefits Group, LLC, 6:11-CV-1186-ORL-28, 2013 WL

3771322, at *16-17 (M.D. Fla. July 18, 2013); see also Thomas v. FTS USA, LLC, No. 3:13-cv-825, 2016 U.S. Dist.

LEXIS 86061, at *16 (E.D. Va. June 30, 2016) (applying .com disclosure guide to issue of adequacy of disclosures

under Federal Credit Reporting Act); Milbourne v. JRK Residential Am., LLC, 3:12-cv-861, 2016 U.S. Dist. LEXIS

33608, at *21-22 (E.D. Va. Mar. 14, 2016) (applying .com disclosures to issue of adequacy of disclosures under

Truth in Lending Act). In the instant case, the .com disclosures guide is informative for purpose of establishing 

boundaries for Intuit’s advertising going forward. 
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to modify its claim so as not to be deceptive. In this regard, the record demonstrates that Intuit 

has a substantial executive, marketing, and advertising team to assist.

ii. Compelled Speech

Next, Respondent objects to the requirement in Section I.C that, when advertising as free 

products that are not in fact free for the majority of taxpayers, Intuit must disclose that fact, i.e., 

state in its advertising that a majority of taxpayers are not eligible. Respondent argues that this 

amounts to unconstitutionally compelled speech. RB at 112. 

Respondent acknowledges that the Constitution does not bar the government from 

compelling certain disclosures in commercial speech, where the speech at issue is 

“‘noncontroversial and not unjustified or unduly burdensome.’” RB at 112 (quoting National 

Institute of Family & Life Advocates v. Becerra, 138 S. Ct. 2361, 2372 (2018)). Respondent 

contends that the disclosure required under Section I.C is unjustified because the totality of 

United States taxpayers is not the appropriate metric for measuring eligibility for free tax filing 

with TurboTax. This argument has previously been rejected. See section III.E.2. Respondent 

further asserts that it is unjustified and unduly burdensome to require Intuit to make such 

disclosures, when its competitors are not similarly required to do so. This conclusory assertion, 

unsupported by record evidence, is unpersuasive and is rejected. 

iii. Clarity and Precision

Respondent argues that the required disclosures in Section I.B are insufficiently clear and 

precise. That provision, as set forth above, requires that, unless the products or services being 

advertised for free are in fact free for all consumers, Intuit’s disclosures must include: “All the 

terms, conditions, and obligations upon which receipt and retention of the ‘Free’ good or service 

are contingent are set forth Clearly and Conspicuously at the outset of the offer so as to leave no 

reasonable probability that the terms of the offer might be misunderstood.” Proposed Order 

Section I.B. Respondent asserts that it is unclear how the disclosure requirements are to be 

carried out in practice, and what specific disclosures will be deemed to meet the requirements of 

I.B. For the reasons explained below, Respondent’s argument is rejected. 
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The law requires only that the provisions of the order be sufficiently clear to be 

understood by “those against whom they are directed” in order to “avoid raising serious 

questions as to their meaning and application” in the event of the need for future enforcement. 

Colgate-Palmolive, 380 U.S. at 392. As recognized in Colgate-Palmolive, it is sufficient under 

this standard if the terms “are as specific as the circumstances will permit.” 308 U.S. at 393; 

Sterling Drug, 741 F.2d at 1157. On its face, Section I.B is little more than a restatement of wellestablished law, that “[d]isclaimers or qualifications” to an advertised offer “are not adequate to 

avoid liability” for a false or misleading representation in the advertisement, “unless they are 

sufficiently prominent and unambiguous to change the apparent meaning of the claims and to 

leave an accurate impression.” Removatron, 884 F.2d at 1497. In addition, similar disclosure 

language has been part of FTC guidance to advertisers of free offers for decades. See Guide 

Concerning Use of the Word “Free” and Similar Representations (the “Free Guides”), 16 C.F.R. 

§ 251.1(c) (“[C]onditions and obligations upon which receipt and retention of the ‘Free’ item are 

contingent should be set forth clearly and conspicuously at the outset of the offer so as to leave 

no reasonable probability that the terms of the offer might be misunderstood.”). While the Free 

Guides are not binding law, the fact that the challenged disclosure requirements are identical to 

long standing guidance, as well as consistent with well-established law, rebuts the notion that 

Intuit cannot reasonably be expected to understand or implement the requirements of Section I.B. 

The disclosure requirements are driven by the claim Respondent chooses to make. POM, 777 

F.3d at 497. 

The terms of Section I.B appear to be “as specific as the circumstances will permit.” 

Colgate-Palmolive, 308 U.S. at 393. Under the circumstances presented, “it does not seem 

‘unfair to require that one who deliberately goes perilously close to an area of proscribed conduct 

shall take the risk that he may cross the line.’” Colgate-Palmolive, 380 U.S. at 393 (citation 

omitted). If, going forward, Intuit is uncertain as to how to apply the requirements of I.B, “the 

uncertainty may be resolved under the Commission’s Rules of Practice which permit petitioner 

to ascertain in advance whether a particular advertising claim comes within the scope of the 
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order, 16 C.F.R. §§ 3.61(d), (e). Colgate-Palmolive, 380 U.S. at 394; Vanity Fair Paper Mills, 

Inc., v. FTC, 311 F.2d at 480, 488 (2d Cir. 1962).” Fedders, 529 F.2d at 1404.44F

45 

b. Multi-product Scope

The provisions of the Proposed Order apply to Intuit’s advertising, marketing, promotion 

or offer of sale of free TurboTax online filing products, as well as any “goods or services” that 

Intuit advertises, markets, promotes or offers to sell as “free.” Proposed Order Sections I, II. 

Respondent objects to this multi-product scope of the Proposed Order, arguing that because the 

evidence does not prove any violation as to any product other than TurboTax, “a cease-anddesist order is limited to the challenged practice.” RRB at 84. Respondent is incorrect. As stated 

in POM: 

It is well established that the Commission may issue orders containing fencing-in 

provisions, that is, “provisions that are broader than the conduct that is declared 

unlawful.” Telebrands Corp., 457 F.3d at 357 n.5; see also, e.g., ColgatePalmolive Co., 380 U.S. at 394-95; FTC v. Ruberoid Co., 343 U.S. 470, 473 

(1952). As the Supreme Court recognized in Ruberoid, the Commission’s orders 

need not be restricted to the “narrow lane” of a respondent’s past actions; the 

Commission may effectively “close all roads to the prohibited goal, so that its 

order may not be by-passed with impunity.” Ruberoid Co., 343 U.S. at 473. 

2013 WL 8364895, at *54; FTC v. Grant Connect, LLC, 763 F.3d 1094, 1105 (9th Cir. 2014) 

(“[T]hose ‘caught violating’ the FTC Act ‘must expect some fencing in.’”) (quoting Nat’l Lead, 

352 U.S. at 431).

A common form of “fencing-in” relief is a “multi-product” prohibition, such as that in the 

Proposed Order, which bars the respondent from using deceptive trade practices to sell not only 

the product that was the subject of the enforcement action, but other products sold by the 

respondent. “In determining whether a broad fencing-in order bears a ‘reasonable relationship’ to 

a violation of the Act, the Commission considers (1) the deliberateness and seriousness of the 

45 Respondent relies on LabMd, Inc. v. FTC, 894 F.3d 1221 (11th Cir. 2018) as a basis for rejecting the Section I.B 

disclosure requirements. In that case, the Eleventh Circuit Court of Appeals vacated an order of the Commission 

because the order, unlike the instant case, contained no prohibitions on LabMD’s future conduct, but contained only 

affirmative requirements to “overhaul and replace its data-security program,” without providing sufficiently clear 

standards for subsequent enforcement. 894 F.3d at 1224, 1236. The facts, law, and remedial order in LabMD are not 

analogous to the instant case, and LabMD does not constitute persuasive authority for rejecting the disclosure 

requirements in Section I.B of the Proposed Order.
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violation, (2) the degree of transferability of the violation to other products, and (3) any history 

of prior violations.” Kraft, 970 F.2d at 326. See, e.g., POM, 2013 WL 8364895, at *53-55; see 

also Colgate-Palmolive, 380 U.S. at 394 (upholding fencing-in that encompassed all products); 

Sears, Roebuck & Co. v. FTC, 676 F.2d 385, 391-92 (9th Cir. 1982); Bristol-Myers Co. v. FTC, 

738 F.2d 554, 563-64 (2d Cir. 1984).

All three factors need not be present to find a reasonable relationship between the 

violation of the FTC Act and the multi-product order. Telebrands Corp. v. FTC, 457 F.3d 354, 

358-59 (4th Cir. 2006). “The reasonable relationship analysis operates on a sliding scale - any 

one factor’s importance varies depending on the extent to which the others are found. In other 

words, the more serious a violation, the less important transferability and prior history become. 

See Sears, 676 F.2d at 392 (‘The more egregious the facts with respect to a particular element, 

the less important it is that another negative factor be present.’).” Id. at 358; see Thompson Med., 

1984 FTC LEXIS 6, at *414 (entering fencing-in order based on finding two factors); POM, 

2013 WL 8364895, at *53-55 (same). 

With respect to the seriousness and deliberateness of Intuit’s conduct and the history of 

Intuit’s violations, the record shows that Intuit’s deceptive free tax filing advertising campaign 

has endured for years. F. 49. Moreover, the advertisements have run across multiple media 

channels and have been viewed or “clicked” millions of times over the years. F. 50, 221. In 

addition, regardless of whether Intuit’s executives specifically or subjectively intended to 

deceive its customers, the facts show, as noted above, that Intuit knew that consumers believed 

that TurboTax was free for them (F. 453, 457) but that only approximately one-third of taxpayers 

actually qualified for the free tax filing offer (F. 36-37); was aware of years of customer 

feedback expressing dissatisfaction over expecting to be able to file for free with TurboTax, but 

being unable to do so (F. 472-507); and was a defendant in numerous court cases claiming that 

Intuit’s free tax filing advertising was deceptive. F. 535-537. Respondent’s actions to stop any of 

the challenged advertising occurred only under the pressure of governmental investigation and 

litigation. F. 534. This history, as well as the duration, breadth, and consistency of Intuit’s 

conduct, weigh in favor of ordering fencing-in relief. See Kraft, 970 F.2d at 326 (noting Kraft’s 

“expensive, nationwide campaign” in evaluating seriousness and deliberateness of Kraft’s 

conduct); Thompson Med., 1984 FTC LEXIS 6, *415-16 (stating that the “seriousness of 
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Thompson’s violations is evidenced by the size and duration of Thompson’s deceptive 

advertising campaign”). In addition, Intuit’s deceptive advertising practices found in this case are 

also easily transferrable to its other products, Quickbooks and Credit Karma.

Based on the foregoing, a multi-product fencing-in order is justified.45F

46

4. Conclusion

After consideration of all the arguments of the parties and the entire record in this case, 

the Proposed Order will be entered as the Order in this case. The attached Order, to be entered 

herewith, will serve to prohibit and prevent Respondent from engaging in deceptive practices in 

the future, is reasonably related to the unlawful acts or practices found to exist, and is sufficiently 

clear and precise.

ORDER 

Definitions

For the purposes of this Order, the following definitions apply:

A. “Clearly and Conspicuously” means that a required disclosure is difficult to 

miss (i.e., easily noticeable) and easily understandable by ordinary consumers, including in all of 

the following ways:

1) In any communication that is solely visual or solely audible, the disclosure 

must be made through the same means through which the communication 

is presented. In any communication made through both visual and audible 

means, such as a television advertisement, the disclosure must be 

presented simultaneously in both the visual and audible portions of the 

communication even if the representation requiring the disclosure is made 

in only one means.

46 Respondent argues that various provisions of the Proposed Order are materially duplicative of the State 

Settlement. RRB at 80-81. Respondent does not persuasively explain why this forms a basis for striking or 

modifying any provision of the Proposed Order. To the extent Respondent is arguing that the provisions of the State 

Settlement render the Proposed Order unnecessary, that argument is rejected for the reasons explained in section 

III.G.1.c.
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2) A visual disclosure, by its size, contrast, location, the length of time it 

appears, and other characteristics, must stand out from any accompanying 

text or other visual elements so that it is easily noticed, read, and 

understood.

3) An audible disclosure, including by telephone or streaming video, must be 

delivered in a volume, speed, and cadence sufficient for ordinary 

consumers to easily hear and understand it.

4) In any communication using an interactive electronic medium, such as the 

Internet or software, the disclosure must be unavoidable.

5) On a product label, the disclosure must be presented on the principal 

display panel.

6) The disclosure must use diction and syntax understandable to ordinary 

consumers and must appear in each language in which the representation 

that requires the disclosure appears.

7) The disclosure must comply with these requirements in each medium 

through which it is received, including all electronic devices and face-toface communications.

8) The disclosure must not be contradicted or mitigated by, or inconsistent 

with, anything else in the communication.

9) When the representation or sales practice targets a specific audience, such 

as older adults, “ordinary consumers” includes reasonable members of that 

group.

B. “Free” means that the consumer pays nothing for a good or service.
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Provisions

I.

Prohibition Concerning “Free” Offers

It is ordered that Respondent, Respondent’s officers, agents, employees, and attorneys, 

and all other persons in active concert or participation with them, who receive actual notice of 

this Order by personal service or otherwise, whether acting directly or indirectly, in connection 

with the advertising, marketing, promoting, or offering for sale of any goods or services, must 

not represent that a good or service is “Free” unless:

A. Respondent offers the good or service for Free to all consumers; or

B. All the terms, conditions, and obligations upon which receipt and retention of the 

“Free” good or service are contingent are set forth Clearly and Conspicuously at the outset of the 

offer so as to leave no reasonable probability that the terms of the offer might be misunderstood. 

C. Further, if the goods or services are not Free for a majority of U.S. taxpayers, 

such 

a fact is disclosed Clearly and Conspicuously at the outset of any disclosures required by I.B. 

II.

Prohibited Misrepresentations

It is further ordered that Respondent, Respondent’s officers, agents, employees, and 

attorneys, and all other persons in active concert or participation with them, who receive actual 

notice of this Order by personal service or otherwise, whether acting directly or indirectly, in 

connection with the advertising, marketing, promoting, or offering for sale of any goods or 

services, must not misrepresent or assist others in misrepresenting, expressly or by implication, 

any material fact, including: 

A. The cost of any of Respondent’s goods or services, including any TurboTax 

product or service; 
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B. That consumers can only file their taxes online accurately if they use a paid 

TurboTax product or service;

C. That consumers can only claim a tax credit or deduction if they use a paid 

TurboTax product or service; and

D. Any other fact material to consumers concerning any good or service, such as: the 

total costs; any refund policy; any material restrictions, limitations, or conditions; or any material 

aspect of its performance, efficacy, nature, or central characteristics.

III.

Acknowledgments of the Order

It is further ordered that Respondent obtain acknowledgments of receipt of this Order:

A. Respondent, within 10 days after the effective date of this Order, must submit to 

the Commission an acknowledgment of receipt of this Order sworn under penalty of perjury.

B. For 20 years after the issuance date of this Order, Respondent must deliver a copy 

of this Order to: (1) all principals, officers, directors, and LLC managers and members; (2) all 

employees having managerial responsibilities for conduct related to the subject matter of the 

Order and all agents and representatives who participate in conduct related to the subject matter 

of the Order; and (3) any business entity resulting from any change in structure as set forth in the 

Provision titled Compliance Report[s] and Notices. Delivery must occur within 10 days after the 

effective date of this Order for current personnel. For all others, delivery must occur before they 

assume their responsibilities. 

C. From each individual or entity to which a Respondent delivered a copy of this 

Order, that Respondent must obtain, within 30 days, a signed and dated acknowledgment of 

receipt of this Order.
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IV.

Compliance Reports and Notices

It is further ordered that Respondent make timely submissions to the Commission:

A. One year after the issuance date of this Order, Respondent must submit a 

compliance report, sworn under penalty of perjury, in which Respondent must:

1) Identify the primary physical, postal, and email address and telephone 

number, as designated points of contact, which representatives of the 

Commission, may use to communicate with Respondent; 

2) Identify all of Respondent’s businesses by all of their names, telephone 

numbers, and physical, postal, email, and Internet addresses; 

3) Describe the activities of each business, including the goods and services 

offered, the means of advertising, marketing, and sales; 

4) Describe in detail whether and how that Respondent is in compliance with 

each Provision of this Order, including a discussion of all of the changes 

the Respondent made to comply with the Order; and

5) Provide a copy of each Acknowledgment of the Order obtained pursuant 

to this Order, unless previously submitted to the Commission.

B. After the effective date of this Order, Respondent must submit a compliance 

notice, sworn under penalty of perjury, within 14 days of any change in the following: 

1) Any designated point of contact; or 

2) The structure of Respondent or any entity that Respondent has any 

ownership interest in or controls directly or indirectly that may affect 

compliance obligations arising under this Order, including: creation, 

merger, sale, or dissolution of the entity or any subsidiary, parent, or 

affiliate that engages in any acts or practices subject to this Order.
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C. After the effective date of this Order, Respondent must submit notice of the filing 

of any bankruptcy petition, insolvency proceeding, or similar proceeding by or against 

Respondent within 14 days of its filing.

D. Any submission to the Commission required by this Order to be sworn under 

penalty of perjury must be true and accurate and comply with 28 U.S.C. § 1746, such as by 

concluding: “I declare under penalty of perjury under the laws of the United States of America 

that the foregoing is true and correct. Executed on: _____” and supplying the date, signatory’s 

full name, title (if applicable), and signature.

E. Unless otherwise directed by a Commission representative in writing, all 

submissions to the Commission pursuant to this Order must be emailed to DEbrief@ftc.gov or 

sent by overnight courier (not the U.S. Postal Service) to: Associate Director for Enforcement, 

Bureau of Consumer Protection, Federal Trade Commission, 600 Pennsylvania Avenue NW, 

Washington, DC 20580. The subject line must begin: In re Intuit Inc., Docket No. 9408. 

V.

Recordkeeping

It is further ordered that Respondent must create certain records for 20 years after 

issuance of the Order, and retain each such record for 5 years. Specifically, Respondent must 

create and retain the following records:

A. Accounting records showing the revenues from all goods or services sold, the 

costs incurred in generating those revenues, and resulting net profit or loss; 

B. Personnel records showing, for each person providing services in relation to any 

aspect of the Order, whether as an employee or otherwise, that person’s: name; addresses; 

telephone numbers; job title or position; dates of service; and (if applicable) the reason for 

termination;

C. Copies or records of all consumer complaints and refund requests, whether 

received directly or indirectly, such as through a third party, and any response; 
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D. All records necessary to demonstrate full compliance with each provision of this 

Order, including all submissions to the Commission; and

E. A copy of each unique Advertisement or other marketing material relating to 

TurboTax products or services.

VI.

Compliance Monitoring

It is further ordered that, for the purpose of monitoring Respondent’s compliance with 

this Order:

A. After the effective date, within 10 days of receipt of a written request from a 

representative of the Commission, Respondent must: submit additional compliance reports or

other requested information, which must be sworn under penalty of perjury, and produce records 

for inspection and copying. 

B. For matters concerning this Order, representatives of the Commission are 

authorized to communicate directly with Respondent. Respondent must permit representatives of 

the Commission to interview anyone affiliated with Respondent who has agreed to such an 

interview. The interviewee may have counsel present.

C. The Commission may use all other lawful means, including posing through its 

representatives as consumers, suppliers, or other individuals or entities, to Respondent or any 

individual or entity affiliated with Respondent, without the necessity of identification or prior 

notice. Nothing in this Order limits the Commission’s lawful use of compulsory process, 

pursuant to Sections 9 and 20 of the FTC Act, 15 U.S.C. §§ 49, 57b-1.

VII.

Order Effective Date

It is further ordered that the final and effective date of this Order is the 60th day after 

this Order is served. This Order will terminate 20 years from the date of its issuance (which date 
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may be stated at the end of this Order, near the Commission’s seal), or 20 years from the most 

recent date that the United States or the Commission files a complaint (with or without an 

accompanying settlement) in federal court alleging any violation of this Order, whichever comes 

later; provided, however, that the filing of such a complaint will not affect the duration of: 

A. Any Provision in this Order that terminates in less than 20 years; 

B. This Order if such complaint is filed after the Order has terminated pursuant to 

this Provision. 

Provided, further, that if such complaint is dismissed or a federal court rules that 

Respondent did not violate any provision of the Order, and the dismissal or ruling is either not 

appealed or upheld on appeal, then the Order will terminate according to this Provision as though 

the complaint had never been filed, except that the Order will not terminate between the date 

such complaint is filed and the later of the deadline for appealing such dismissal or ruling and the 

date such dismissal or ruling is upheld on appeal. 

ORDERED: 

D. Michael Chappell

 Chief Administrative Law Judge 

Date: September 6, 2023 

A