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UNITED STATES OF AMERICA 

FEDERAL TRADE COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

In the matter of: 

Intuit Inc., a corporation, 

Respondent. 

Docket No. 9408

COMPLAINT COUNSEL’S OPPOSITION TO INTUIT’S MOTION IN 

LIMINE TO EXCLUDE OUTDATED ADVERTISEMENTS1 

This case is about Respondent Intuit Inc.’s (“Intuit”) deceptive marketing of 

TurboTax as “free” when in truth TurboTax is not free for most American taxpayers. 

Intuit’s ads and marketing communications are at the core of the case. See e.g., In re 

Daniel Chapter One, No. 9329, 2009 WL 2584873, at *66 (F.T.C. Aug. 5, 2009) (“The 

primary evidence of the claims an advertisement conveys to reasonable consumers is 

the advertisement itself.”). At trial, Complaint Counsel expects to present testimony 

and evidence regarding Intuit’s pervasive and long running “free” TurboTax campaign. 

The evidence spans temporally from Intuit’s 2015 TurboTax Super Bowl Boston Tea 

Party ad, the premise of which was that “the American Revolution is called off because 

the Brits allowed for easy and free tax filing,”2 to ads that ran through at least 2022 such 

as Intuit’s TurboTax Auctioneer commercial where the word “free” is repeated 

incessantly and a voiceover declares: “That’s right. TurboTax Free Edition is free. Free, 

free, free, free.” GX 202 (video of TurboTax Auctioneer Ad). While Intuit and its 

advertising agencies are very creative and generated dozens of unique and entertaining 

TurboTax free ads and other marketing communications, all of the marketing 

1 Exhibits referenced herein were previously submitted to the Court and Intuit with 

Complaint Counsel’s Pretrial Brief and are not re-produced here for efficiency. The 

exhibits can be re-produced upon request. 

2 Ad Age Video, 2015: Super Bowl XLIX, TurboTax - Boston Tea Party, available at 

adage.com/videos/turbotax-boston-tea-party/129 (last visited Aug. 22, 2022). 

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Complaint Counsel expects to present at trial delivered the same inescapable message 

to consumers—TurboTax is free. Such evidence is clearly relevant, material, and 

reliable and should not be prematurely excluded on a motion in limine. 

I. Motion In Limine Standard 

“Motions in limine are generally used to ensure evenhanded and expeditious 

management of trials by eliminating evidence that is clearly inadmissible.” In re POM 

Wonderful LLC, 2011 FTC LEXIS 79, at *7 (May 6, 2011) (citing Bouchard v. American Home 

Products Corp., 213 F. Supp. 2d 802, 810 (N.D. Ohio 2002); Intermatic Inc. v. Toeppen, No. 

96-cv-1982, 1998 U.S. Dist. LEXIS 15431, at *6 (N.D. Ill. Feb. 28, 1998)). “Evidence should 

be excluded on a motion in limine only when the evidence is clearly inadmissible on all 

potential grounds.” Id. at *7-8. Commission Rule 3.43 governs the admission of relevant 

evidence. It states in part: “Relevant, material, and reliable evidence shall be admitted. 

Irrelevant, immaterial, and unreliable evidence shall be excluded.” 16 C.F.R. §3.43(b). 

“Evidence, even if relevant, may be excluded if its probative value is substantially 

outweighed by the danger of unfair prejudice, confusion of the issues, or if the evidence 

would be misleading, or based on considerations of undue delay, waste of time, or 

needless presentation of cumulative evidence.” Id. Here, the free TurboTax ads in 

question are clearly relevant, material, and reliable. And Intuit has failed to 

demonstrate that such evidence is prejudicial or clearly inadmissible on all potential 

grounds, or that preclusion of the evidence, at this stage in the proceedings, is necessary 

to ensure evenhanded and expeditious management of the hearing. Thus, Intuit’s 

motion in limine should be denied. 

II. Argument 

Intuit’s motion in limine is based on two faulty premises: (1) a three-year statute 

of limitations applies; and (2) Intuit ads from Tax Years 2014 to 2018 differ substantially 

from “Intuit’s recent, current, and future ads.” Intuit is mistaken on both fronts. 

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No Statute of Limitations Applies. Intuit is wrong when it argues that a threeyear limitation period is appropriate. Mot. at 5. No statute of limitations applies to 

claims brought under Section 5 of the FTC Act seeking injunctive relief, such as this 

case. See, e.g., 15 U.S.C. § 57b(d) (setting three-year statute of limitations for claims 

under Section 19(a), not Section 5 actions); see also, FTC v. Ivy Capital, Inc., 2011 WL 

2470584, at *2 (D. Nev. June 20, 2011) (striking statute of limitations affirmative 

defense); United States v. Bldg. Inspector of Am., Inc., 894 F. Supp. 507, 513 (D. Mass. 1995) 

(holding no statute of limitations applies); see generally, In re POM Wonderful LLC, 2011 

FTC LEXIS 79, at *8-9 (May 6, 2011) (denying motion in limine seeking to exclude 

advertisements that Respondents claimed were too remote in time). Contrary to Intuit’s 

argument, Section 19’s statute of limitations does not apply to other sections of the FTC 

Act. See, e.g., FTC v. Sec. Rare Coin & Bullion Corp., 931 F.2d 1312, 1315 (8th Cir. 

1991); United States v. Prochnow, 2007 WL 3082139, at *5 (11th Cir. Oct. 22, 2007); FTC v. 

Hornbeam Special Situations, LLC, 308 F. Supp. 3d 1280, 1296 (N.D. Ga. 2018); FTC v. J 

William Enters., 283 F. Supp. 3d 1259, 1262 (M.D. Fla. 2017). Moreover, “laches is not 

available against the federal government when it undertakes to enforce a public right or 

to protect the public interest.” FTC v. Bronson Partners, LLC, No. 3:04CVI866, 2006 WL 

197357, at *1 (D. Conn. Jan. 25, 2006); see also Heckler v. Community Health Servs. of 

Crawford County, 467 U.S. 51, 60-61 (1984); United States v. Summerlin, 310 U.S. 414, 416 

(1940); In re Rentacolor, Inc., 103 F.T.C. 400, 418 (1984) (“[N]either equitable estoppel nor 

laches is a defense to an action brought by the government in the public interest.”). 

Intuit attempts to concoct a statute of limitations through absorption citing 

DelCostello v. International Broth. Of Teamsters, 462 U.S. 151 (1983). However, DelCostello 

is inapposite and makes clear that statutes of limitations do not apply to federal causes 

of action, like this one, lying only in equity. Id. at 162. In DelCostello, the Court 

explained that in some cases involving actions at law it is appropriate to absorb or 

“borrow” statutes of limitations from other sources where there is no expressly 

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applicable federal statute of limitations. Id. at 158-59. But what Intuit omits from its 

argument is that the Court distinguishes cases in equity, like the instant case, where 

borrowing a statute of limitation would be inappropriate “because the principles of 

federal equity are hostile to the ‘mechanical rules’ of statutes of limitations.” Id. at 162 

(quoting Holmberg v. Armbrecht, 327 U.S. 392, 396 (1946)). Since the cease-and-desist 

order Complaint Counsel seeks in this case is equitable in nature, borrowing a statute of 

limitations would be inappropriate. 

Intuit’s Tax Year 2014-18 TurboTax Ads are Relevant and Material. Intuit also 

misses the mark when it argues “ads from Tax Years 2014-18 have little relation to 

Intuit’s more recent ads” and “are irrelevant and immaterial.” Mot. at 1 & 6-8. First, the 

TurboTax free ads from Tax Years 2014 to 2018 are relevant and material in that they are 

the advertisements themselves and constitute the primary evidence of the claims the 

advertisements convey. See e.g., Daniel Chapter One, 2009 WL 2584873, at *66. Since 

there is no applicable statute of limitations and the ads from Tax Years 2014 to 2018 

include deceptive free claims, each of these ads constitutes a violation of Section 5(a) of 

the FTC Act even if Intuit is somehow able to show that the more recent ads were not 

deceptive. 

Second, to substantively evaluate Intuit’s contention (that the ads from Tax Years 

2014 to 2018 have little relation to Intuit’s more recent ads) at trial, it is necessary for the 

Court to admit these ads into evidence, review them, and compare them to the more 

recent TurboTax free ads. This is reason alone to deny Intuit’s motion in limine. 

Third, Intuit’s Tax Year 2014 to 2018 ads are substantially similar to Intuit’s more 

recent ads in the only way that matters for purposes of this case—they convey the 

inescapable and singular message that TurboTax is free. Whether the ads feature the 

Boston Tea Party, RX 200 (TY14 Boston Tea Party Super Bowl ad), Anthony Hopkins 

sipping tea with his dog, GX 323 (TY15 “Never A Sellout” Super Bowl ad), a fisherman 

being speared by a swordfish, GX 776 (TY17 Fish ad), a spelling bee, GXs 807 & 821 

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(TY18 & TY19 Spelling Bee ad), a dog show, GX 848 (TY21 Dog Show ad), or a dance 

instructor, GX 849 (TY21 Dance Workout ad), the central message communicated to 

consumers is the same—you can file for free with TurboTax. The fact that some of the 

ads included disclaimers and that the disclaimers varied over time is of no moment. As 

Professor Novemsky opines, the disclaimers were ineffective and failed to correct the 

misimpression held by a substantial portion of consumers not eligible for TurboTax 

Free Edition that they could file for free using TurboTax. See GX 303 (Novemsky Expert 

Report) at ¶¶ 8, 10, 69, 85 & Figures 1 & 3. 

Intuit is also mistaken when it argues that “the Complaint does not even purport 

to address alleged misconduct from Tax Year 2014, instead limiting the allegations to 

advertising ‘since ... 2016.’” Mot. at 7 (selectively quoting Compl. ¶21). In conjuring 

this argument, Intuit omits the following key language contained in the Complaint that 

leaves open the possibility the allegations reach back before 2016: 

 “Since at least 2016, Intuit has promoted TurboTax through advertising 

that represents that consumers can file their taxes for free using 

TurboTax.” (Compl. ¶ 21) (emphasis added). 

 “In numerous instances in connection with the advertising, marketing, 

promotion, offering for sale, or sale of online tax preparation products or 

services, Respondent represents, directly or indirectly, expressly or by 

implication, that consumers can file their taxes for free using TurboTax.” 

(Compl. ¶ 119) 

Moreover, in responding to Intuit’s written discovery and in connection with the 

motion for summary decision filed by Complaint Counsel on August 22, 2022, 

Complaint Counsel made clear that Intuit’s Boston Tea Party 2015 Super Bowl Ad 

(covering Tax Year 2014) was at issue. See Complaint Counsel’s Motion for Summary 

Decision at p. 1-2 (citing and quoting GX 321 (Intuit’s 2015 Boston Tea Party Super Bowl 

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Ad)). Intuit has had every opportunity to defend that ad and other Tax Year 2014 to 

2018 TurboTax Ads if it can. 

Intuit’s Consent with States is irrelevant to whether the Tax Year 2014 to 2018 

TurboTax Ads should be admitted into evidence. Finally, Intuit makes the puzzling 

argument that a Consent agreement it entered with the states and the District of 

Columbia (collectively, the “States”) after the filing of this case somehow requires the 

Court to exclude ads predating it. Mot. at 8. In making this argument, Intuit points out 

that Complaint Counsel must show a “cognizable danger of recurring violation” in 

order to secure a cease and desist order, and then claims that the Tax Year 2014 to 2018 

TurboTax Ads are not relevant and should be excluded as they don’t specifically go to 

that question. Mot. at 8. This argument skips the liability phase of the proceeding 

altogether. Whether Intuit is liable for deception is still very much a part of this 

proceeding and, as explained above, the ads themselves constitute the primary evidence 

of the claims the advertisements convey. See, e.g., Daniel Chapter One, 2009 WL 2584873, 

at *66. Thus, all of the ads at issue, including the Tax Year 2014 to 2018 TurboTax ads, 

are a necessary component of the proof at trial and should not be excluded. Moreover, 

Intuit’s own expert relied on ads from Tax Year 2017 in constructing a copy test, which 

Intuit presumably intends to rely on for trial. See RX 1017 (Hauser Report) at ¶ 90. 

After liability is established, the question of whether there is a “cognizable 

danger of recurring violation,” United States v. W. T. Grant Co., 345 U.S. 629, 633 (1953), 

then becomes relevant in determining whether a cease-and-desist order is an 

appropriate remedy. On that front, the Tax Year 2014 to 2018 TurboTax ads are also 

relevant because “[t]he existence of past violations may give rise to an inference that 

there will be future violations; and the fact that the defendant is currently complying 

with the ... laws does not preclude an injunction.” SEC v. Murphy, 626 F.2d 633, 655 (9th 

Cir. 1980). In predicting the likelihood of future violations, a court must assess the 

totality of the circumstances surrounding the defendant and its violations, and it 

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considers factors such as the degree of scienter involved; the isolated or recurrent 

nature of the infraction; the defendant’s recognition of the wrongful nature of its 

conduct; the likelihood, because of defendant’s industry or occupation, that future 

violations might occur; and the sincerity of its assurances against future violations. Id. 

Considering Intuit’s long running and pervasive deception is part of assessing the 

totality of the circumstance and the Tax Year 2014 to 2018 TurboTax ads are directly 

relevant to that inquiry. 

Conclusion. For the foregoing reasons, Intuit’s motion in limine should be denied. 

Respectfully submitted, 

Dated: February 24, 2023 /s/ Roberto Anguizola 

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 February 24, 2023, I electronically filed the foregoing 

Complaint Counsel’s Opposition to Intuit’s Motion In Limine to Exclude Outdated 

Advertisements 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 

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 February 24, 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 

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 

Jonathan E. Paikin 

Jennifer Milici 

Derek A. Woodman 

Vinecia Perkins 

Andres Salinas 

Spencer Todd

Jocelyn Berteaud

Benjamin Chapin

Margaret (Molly) Dillaway

Reade Jacob 

Wilmer Cutler Pickering Hale & Dorr LLP 

1875 Pennsylvania Avenue NW 

Washington, DC 20006

Jonathan.Paikin@wilmerhale.com 

Jennifer.Milici@wilmerhale.com 

Derek.Woodman@wilmerhale.com 

Vinecia.Perkins@wilmerhale.com 

Andres.Salinas@wilmerhale.com 

Spencer.Todd@wilmerhale.com

Joss.Berteaud@wilmerhale.com 

Benjamin.Chapin@wilmerhale.com 

Molly.Dillaway@wilmerhale.com 

Reade.Jacob@wilmerhale.com 

(202) 663-6000 

Attorneys for Respondent, Intuit Inc. 

/s/ Roberto Anguizola 

Complaint Counsel 

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