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UNITED STATES OF AMERICA

BEFORE THE FEDERAL TRADE COMMISSION

COMMISSIONERS: Lina M. Khan, Chair 

Rebecca Kelly Slaughter 

Alvaro M. Bedoya

In the matter of: 

Intuit Inc., a corporation,

Respondent. 

Docket No. 9408

COMPLAINT COUNSEL’S RESPONSE TO RESPONDENT INTUIT’S 

MOTION TO DISQUALIFY CHAIR LINA M. KHAN1

Respondent Intuit’s Motion to Disqualify should be denied because Intuit has not 

made the requisite showing that Chair Khan “demonstrably made up [her] mind about

important and specific factual questions and is impervious to contrary evidence.” Fast 

Food Workers Comm. v. NLRB, 31 F.4th 807, 815 n.4 (D.C. Cir. 2022) (cleaned up) (citing 

cases). “The standard for disqualification based on prejudgment is an exacting one.” In 

re N.C. Bd. of Dental Exam’rs, 151 F.T.C. 644, 648 (2011). To prevail on the Motion, Intuit 

must show, with “affidavits and other information,” Rule 4.17(b)(1), that Chair Khan’s 

mind is “‘irrevocably closed’ with regard to the legality of the conduct at issue in the 

adjudication,” N.C. Bd. of Dental Exam’rs, 151 F.T.C. at 648 (quoting FTC v. Cement Inst., 

333 U.S. 683, 701 (1948)). Intuit has not made such a showing.2

1 This Response is authorized by Rule 3.22(d). See In re LabMD, Inc., 159 F.T.C. 2145 n.2 

(2015). 

2 The “Background” section of Intuit’s Motion begins with two paragraphs of 

misleading statements. Among others, first, Intuit summarily states: “An extensive 

evidentiary hearing established that Intuit’s advertisements for Free Edition were not 

deceptive. Complaint Counsel came forward with no fact witnesses or other evidence of 

deception or even likely deception.” Mot. at 2. That is simply not the case. See generally

Complaint Counsel’s Post-Trial Brief and Complaint Counsel’s Post-Trial Reply Brief.

Second, Intuit again raises the red herring of Judge Breyer’s denial of a TRO in the 

federal court case ancillary to this matter. For discussion of why this is immaterial, see 

Complaint Counsel’s Post-Trial Reply Brief at 5–6, and RFF-14—RFF-15. 

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In support of its Motion, Intuit has identified three instances in which Chair 

Khan referenced this matter. Read in context, all three references are understood 

properly to characterize this matter as one in which the Commission, including Chair 

Khan, found reason to believe that Intuit engaged in deceptive acts or practices. See 

Compl. pg. 1 (prefatory paragraph) & ¶ 122. 

The first two references—a retweet of a press release and a mention in a speech—

have already been held to be immaterial. See Complaint Counsel’s Post-Trial Reply Brief 

at 110–11 (citing In re Intuit Inc., 2022 WL 16960890, at *5 (F.T.C. Nov. 7, 2022) (Chappell, 

C.A.L.J.); In re Intuit Inc., 2023 FTC LEXIS 18, at *48-49 (Jan. 31, 2023)); see also RFF-932—

RFF-933. Both were simply “[f]actual statements that the FTC has brought a lawsuit 

alleging deception ..., which ... does not evince prejudgment.” Intuit Inc., 2022 WL 

16960890, at *5 (citing FTC v. Cinderella Career & Finishing Sch., Inc., 404 F.2d 1308, 1314–

15 (D.C. Cir. 1968)). Each of these references speaks to the issuance of the Complaint in 

this matter, in which the Commission, by a four-to-one vote, found reason to believe 

that Intuit had violated the FTC Act. Moreover, Intuit’s attempt to justify 

disqualification in an August 2023 motion based on statements from March and April 

2022 is untimely. See N.C. Bd. of Dental Exam’rs, 151 F.T.C. at 649; Rule 4.17(b)(2). 

The third instance Intuit cites is Chair Khan’s answer to a single question in a 

July 13, 2023 hearing before the House Judiciary Committee:

REPRESENTATIVE PRAMILA JAYAPAL: I just want to go 

to evil actors because there’s one more I really want to talk 

about, and that is tax preparation companies. For years, 

Intuit, the maker of TurboTax, flooded consumers with ads 

promising ‘free free free’ tax-filing services only to trick and 

trap them into paying, which is why taxpayers pay $250 on 

average each year just for the privilege of filing their taxes. 

So state attorney generals have won taxpayers money from 

Intuit and the FTC has also taken action. Can you just speak 

about that?

CHAIR LINA M. KHAN: Yeah, absolutely. So, last year the 

FTC brought a lawsuit against Intuit for those very types of 

deceptive practices that are laid out in our complaint. That is 

still pending. But I couldn’t agree more that claims of 

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something being free but then ultimately it not being so 

really hurts people.

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Contrary to Intuit’s overwrought reading of this exchange, it is nothing more 

than another “[f]actual statement[] that the FTC has brought a lawsuit alleging 

deception,” which, again, “does not evince prejudgment.” Intuit, 2022 WL 16960890, at 

*5 (citing Cinderella, 404 F.2d at 1314–15); see also Intuit, 2023 FTC LEXIS 18, at *49 

(“Issuing a press release regarding a Commission action or highlighting the existence or 

importance of such an action does not amount to prejudgment.” (emphasis added)); N.C. 

Bd. of Dental Exam’rs, 151 F.T.C. at 654–55. Chair Khan was asked “Can you just speak 

about that?” with regard to the FTC action against Intuit; she responded “Yeah, 

absolutely,” and noted the existence and pending nature of this matter. Chair Khan was 

accurate in noting that “deceptive practices ... are laid out in our complaint” because 

the Commission, by a four-to-one vote including Chair Khan in the affirmative, found 

reason to believe that Intuit engaged in deception and issued the Complaint—a 

procedure that does not render her or the other Commissioners biased. See Complaint

Counsel’s Post-Trial Reply Brief § II.F.1; see also N.C. Bd. of Dental Exam’rs, 151 F.T.C. at 

652–54; In re Intel Corp., 149 F.T.C. 1548, 1552 n.9 (2010); Gibson v. FTC, 682 F.2d 554, 560 

(5th Cir. 1982) (“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.”) (citing Cinderella, 404 F.2d at 1315; Pangburn v. CAB, 311 F.2d 349, 

356 (1st Cir. 1962); Cement Inst., 333 U.S. at 700–03; Withrow v. Larkin, 421 U.S. 35, 51–56 

(1975) (each of which cite additional cases)). 

Chair Khan’s follow-up remark on free claims was not tethered to this matter. It 

reflected a policy belief, not an adjudication of this case. See Cement Inst., 333 U.S. at 

702–03 (“[no authority] would require us to hold that it would be a violation of 

procedural due process for a judge to sit in a case after [the judge] had expressed an 

3 https://www.youtube.com/watch?v=nLGku6ueO-8&t=7630s. Complaint Counsel 

disagrees with Intuit’s choice of punctuation and omission of the word “Yeah” in its 

transcription.

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opinion as to whether certain types of conduct were prohibited by law”). Intuit’s 

assertion that Chair Khan “stat[ed] without qualification that Intuit has engaged in 

‘deceptive practices’ and that she ‘couldn’t agree more’ that Intuit’s purportedly 

deceptive conduct ‘really hurts people,’” Mot. at 8, is simply belied by what was 

actually said. 

Intuit also faults Chair Khan for “not voic[ing] any disagreement” with 

Representative Jayapal’s statements. Mot. at 6–7. But Chair Khan did not voice any 

agreement with those statements either. Again, Representative Jayapal said: “[T]he FTC 

has also taken action. Can you just speak about that?” to which Chair Khan responded 

by noting the existence of this matter, with the conduct at issue laid out in the 

Complaint. Representative Jayapal has no role in adjudicating the merits of the 

Complaint and her comments are not attributable to Chair Khan.4

* * *

The most recent and correct statement of the standard applicable here was 

reiterated by the D.C. Circuit last year.5 It asks whether Chair Khan has “demonstrably 

made up [her] mind about important and specific factual questions and is impervious to 

4 Intuit also complains that Representative Jayapal has her facts wrong. Mot. at 7. Again, Intuit’s reading is self-serving. For example, Representative Jayapal simply did not say, as Intuit asserts, that Intuit gets consumers to pay “an average of $250 annually 

to file their taxes.” Id. She actually said that “taxpayers pay $250 on average each year 

just for the privilege of filing their taxes,” which is a statistic provided by the IRS. See

https://www.irs.gov/pub/irs-pdf/i1040gi.pdf, at 106 (“[T]he estimated average time burden for all taxpayers filing a Form 1040 or 1040-SR is 13 hours, with an average cost of $250 per return.”). 

5 Intuit bases its arguments in both the standard for administrative agency recusal, as set forth in cases such as Cinderella and Fast Food Workers, and the standard for judicial recusal, as set forth in cases such as In re Boston’s Children First, 244 F.3d 164 (1st Cir. 

2001). Though the Commission has agreed “[i]n general” that judicial recusal standards 

are applicable, it has noted at least one “significant difference”: “[n]amely, the 

separation of functions provisions of the Administrative Procedure Act allow an agency 

or its members to vote on whether to initiate a case or proceeding after reviewing 

pertinent information.” Intel, 149 F.T.C. at 1552 & n.9. Rule 4.17(c) provides that motions 

for disqualification “shall be determined in accordance with legal standards applicable 

to the proceeding in which such motion is filed.” The instant Motion was filed in an 

administrative adjudication, so the most applicable standards are those applicable in 

administrative agency cases—most recently in Fast Food Workers Committee. 

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contrary evidence.” Fast Food Workers Comm., 31 F.4th at 815 n.4 (cleaned up) (citing 

cases). Pointing the public to the existence of this matter and the Complaint that the 

Commission voted to issue is not evidence of prejudgment. See, e.g., Intuit, 2022 WL 

16960890, at *5; Intuit, 2023 FTC LEXIS 18, at *49. Intuit’s Motion should be denied. 

Dated: August 9, 2023

Respectfully submitted,

/s/ James Evans

Roberto Anguizola, IL Bar No. 6270874

Rebecca Plett, VA Bar No. 90988 

James Evans, VA Bar No. 83866 

Sara Tonnesen, MD Bar No. 1312190241 

Federal Trade Commission

600 Pennsylvania Ave., NW, CC-6316 

Washington, DC 20580 

(202) 326-3284 / ranguizola@ftc.gov 

(202) 326-3664 / rplett@ftc.gov

(202) 326-2026 / james.evans@ftc.gov 

(202) 326-2879 / stonnesen@ftc.gov

Counsel Supporting the Complaint

Federal Trade Commission

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CERTIFICATE OF SERVICE

I hereby certify that on August 9, 2023, I electronically filed the foregoing 

Complaint Counsel’s Response to Respondent Intuit’s Motion to Disqualify Chair Lina 

M. Khan electronically using the FTC’s E-Filing system, and I caused the foregoing 

document to be sent via email to: 

April Tabor

Office of the Secretary

Federal Trade Commission

600 Pennsylvania Avenue, NW 

Suite CC-5610 

Washington, DC 20580 

ElectronicFilings@ftc.gov

Secretary of the Commission

Clerk of the Court

Hon. D. Michael Chappell

Chief Administrative Law Judge

Federal Trade Commission

600 Pennsylvania Avenue, NW 

Suite H-110 

Washington, DC 20580 

Administrative Law Judge 

I further certify that on August 9, 2023, I caused the foregoing document to be 

served via email on: 

David Z. Gringer

Phoebe Silos

Charles Bridge

Wilmer Cutler Pickering Hale & Dorr LLP

7 World Trade Center

250 Greenwich Street

New York, NY 10007 

David.Gringer@wilmerhale.com

Phoebe.Silos@wilmerhale.com

Charles.Bridge@wilmerhale.com

(212) 230-8800 

Howard M. Shapiro

Jonathan E. Paikin 

Jennifer Milici

Derek A. Woodman 

Vinecia Perkins

Andres Salinas

Jocelyn Berteaud

Benjamin Chapin

Margaret (Molly) Dillaway

Reade Jacob 

Wilmer Cutler Pickering Hale & Dorr LLP

2100 Pennsylvania Avenue NW 

Washington, DC 20037 

Howard.Shapiro@wilmerhale.com

Jonathan.Paikin@wilmerhale.com 

Jennifer.Milici@wilmerhale.com

Derek.Woodman@wilmerhale.com 

Vinecia.Perkins@wilmerhale.com

Andres.Salinas@wilmerhale.com

Joss.Berteaud@wilmerhale.com

Benjamin.Chapin@wilmerhale.com

Molly.Dillaway@wilmerhale.com

Reade.Jacob@wilmerhale.com

(202) 663-6000 

Shelby Martin

Wilmer Cutler Pickering Hale & Dorr LLP

1225 Seventeenth Street, Suite 2600 

Denver, CO 80202 

Shelby.Martin@wilmerhale.com

(720) 274-3135 

Katherine Mackey

Wilmer Cutler Pickering Hale & Dorr LLP

60 State Street

Boston, MA 02109 

Katherine.Mackey@wilmerhale.com

(617) 526-6000 

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Jonathan D. Leibowitz

6313 Kenhowe Drive 

Bethesda, MD 20817 

jondleibowitz@gmail.com

(202) 577-5342 

Attorneys for Respondent, Intuit Inc.

/s/ James Evans

James Evans

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