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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

OPPOSITION TO INTUIT INC.’S MOTION IN LIMINE TO EXCLUDE 

TESTIMONY OF PROFESSOR NATHAN NOVEMSKY 

Complaint Counsel intends to call at trial Professor Nathan Novemsky, an expert 

in consumer psychology and marketing who designed and supervised a Consumer 

Perception Survey (“Survey”) that shows that a “substantial portion of the taxpayers 

who do not qualify to use TurboTax Free Edition under Intuit’s criteria have the 

misimpression that they can file their income taxes for free using TurboTax, and that 

Intuit’s TurboTax advertisements and the TurboTax website are the two most common 

sources identified as playing a role in taxpayers forming the misimpression.” GX303 

(Novemsky Report) ¶¶8-9.1 Respondent Intuit Inc. (“Intuit”), through its Motion in 

Limine (“MIL”), seeks to exclude Professor Novemsky’s Survey and opinions related to 

the Survey as irrelevant and unreliable; but Intuit has not met its burden to exclude any 

of Professor Novemsky’s testimony. 

Professor Novemsky’s survey and related opinions are squarely relevant to the 

central issue of this case: whether Intuit’s advertising misled consumers to think they 

could use TurboTax for free when that was not the case. Professor Novemsky used 

sound, reliable survey methodology to empirically investigate the effect of Intuit’s 

multiyear, multichannel marketing and advertising campaign. Intuit’s motion should be 

denied. 

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. 

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BACKGROUND 

Professor Novemsky is a Professor of Marketing and Psychology at Yale 

University. He is a widely published expert in the psychology of judgment and 

decision-making, an area that overlaps with behavioral economics and consumer 

behavior. GX303 ¶¶12-13. Professor Novemsky has extensive experience with survey 

design, having conducted, supervised, or evaluated hundreds of surveys. Id at ¶16. 

In designing the Survey, Professor Novemsky relied on scientific methods to 

ensure the reliability of the results, including by following accepted methodological 

guidelines. Id. at ¶5 & n.10. In particular, the Survey sample was chosen to be 

representative of the population of interest. In this case, that population is “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.” Id. at ¶21. Professor Novemsky excluded “respondents who had already filed 

an income tax return in 2022, since (1) such consumers may already know for a fact 

whether they are eligible to use TurboTax to file their returns for free ... and (2) the 

intended audience for TurboTax marketing at the time the survey was conducted was 

taxpayers who have not yet filed their returns.” Id. at ¶22. 

Professor Novemsky conducted the Survey in March 2022. Fielding the survey at 

that time “ha[d] the advantage of reaching potential taxpayers when tax filing is more 

top-of-mind and as many consumers are thinking in earnest about how they will file 

their taxes .... [T]his is the time when potential misperceptions about the cost of filing 

options are most likely to be consequential. If the survey was conducted much earlier in 

the tax season, consumers who have not yet filed their tax returns may not have been 

thinking about tax filing or engaging with the topic of tax filing. As such, the attention 

consumers pay to advertisements about tax filing and how carefully they have thought 

about how they will approach filing their taxes would not be representative of their 

behavior when they are actually making tax filing decisions.” Id. 

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Pursuant to the binding legal requirements of the Privacy Act, 5 U.S.C. § 

552a(e)(3), respondents were provided with information about the purpose of the 

Survey and had the choice to opt-out at the conclusion of the Survey. Answers provided 

by respondents who chose to opt out were not retained in accordance with the Privacy 

Act. 

The purpose of the Survey was to measure the cumulative effect of Intuit’s 

marketing. In designing the Survey, Professor Novemsky determined that “a test / 

control framework would be inappropriate for the objectives of this survey—that is, to 

measure the extent of taxpayers’ opinions and beliefs as to whether they can file their 

taxes for free using TurboTax online software.” Id. at ¶30. Testing a single ad or 

stimulus would not realistically replicate “long running and pervasive marketing 

campaigns in which the allegedly deceptive messages were communicated to 

consumers repeatedly and over various communication channels.” Id. at ¶31; GX749 

(Rebuttal Report) ¶¶18 & 24 (“[A]cademic research demonstrates that test/control 

studies are particularly ill-suited to studying the[] effects [of long-running advertising 

campaigns].”). Moreover, because of the marketing campaigns, Professor Novemsky 

determined through empirical preliminary testing (not impermissible assumptions, as 

Intuit claims, MIL at 9) that there was no appropriate control group not previously 

exposed to Intuit’s deceptive marketing. GX303 ¶33. 

In keeping with best practices, to avoid guessing and other biases, Professor 

Novemsky took appropriate measures—for example through the types of questions 

asked and the use of quasi-filters. GX749 ¶26. The design and sampling used in the 

Survey were reliable to evaluate the effect that Intuit’s “free” marketing has had on 

consumers in the marketplace. 

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ARGUMENT 

I. The High Bar for Motions in Limine Compels Denial of Respondent’s Motion 

Under Rule 3.43(b), only relevant, material, and reliable evidence is admissible. 

16 C.F.R. § 3.43(b). This Court has consistently relied on Daubert to assess the 

admissibility of expert testimony. See Daubert v. Merrell Dow Pharms., Inc., 509 U.S. 579, 

588 (1993); see also In re LabMD, Inc., 2014 FTC LEXIS 115, *3 (May 5, 2014); In re 

McWane, Inc., 2012 FTC LEXIS 142, at *8 (Aug. 16, 2012). Under Daubert, “courts 

consider whether the expert is qualified in the relevant field and examine the 

methodology the expert used in reaching the conclusions at issue.” McWane, 2012 FTC 

LEXIS at *8. Excluding expert testimony is rare. See, e.g., PBM Prods., LLC v. Mead 

Johnson & Co., 639 F.3d 111, 123 (4th Cir. 2011). 

This Court stated in its Scheduling Order and in numerous prior decisions that 

parties should only seek to exclude evidence when it is “clearly inadmissible on all 

potential grounds.” Scheduling Order ¶13 (Apr. 27, 2022) (citations omitted); see also In 

re McWane, 2012 FTC LEXIS at *6-7. As this Court has laid out, “the risk of prejudice 

from giving undue weight to marginally relevant evidence is minimal in a bench trial 

such as this where the judge is capable of assigning appropriate weight to evidence.” 

Scheduling Order ¶13. 

Here, Professor Novemsky, a respected and well-qualified expert in consumer 

psychology and marketing, used best practices to design and implement the Survey, 

producing relevant and reliable results. Thus, there is no reason to exclude his expert 

testimony and Intuit’s motion should be denied. 

II. The Survey Evidence is Squarely Relevant and Will Assist the Trier of Fact 

Professor Novemsky designed a reliable Survey in this matter that establishes 

direct evidence of consumer beliefs based on Intuit’s multichannel, multiyear marketing 

and advertising campaign, as well as Intuit’s purported disclaimer regarding “simple 

returns.” His Survey and opinions will help the Court assess that campaign, and the 

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effectiveness of Intuit’s purported disclaimers. Intuit’s claim that the Survey is not 

relevant are disingenuous and appear to misinterpret both Complaint Counsel’s theory 

of the case and the purpose of the Survey. 

Intuit first claims that the Survey is not relevant because it does not copy test any 

one ad. MIL at 5. While Intuit claims this is an infirmity, it is precisely the design of the 

Survey: to test the cumulative effect of Intuit’s marketing and the impression that such 

marketing has left on consumers. This is particularly relevant given Intuit’s ubiquitous 

advertising, with free-themed ads garnering billions of impressions between 2018 and 

2022. GX749, fig. 4. Because of the purpose of the Survey, the Survey is also 

distinguishable from the case cited by Intuit, in which the issue for jury trial was a 

particular product label. See Mier v. CVS Pharmacy, Inc., 2022 WL 1599633, at *3 (C.D. 

Cal. May 9, 2022). 

Intuit incorrectly argues that because the survey is an “unaided” memory test it 

does not provide any relevant information to aid this Court’s understanding. This 

criticism also fails. Unaided questions are routinely used in surveys, including by 

Intuit’s own expert. See RX1017 (Hauser Report) ¶103. Intuit further argues that the 

Survey is not relevant because, by not showing consumers any ads, it does not replicate 

the real world. MIL at 4-5. Contrary to Intuit’s claims, the survey design replicates the 

real world: the world in which, for years, Intuit spent millions of dollars advertising 

free TurboTax. As Professor Novemsky explains, showing consumers individual ads 

does not realistically replicate “long running and pervasive marketing campaigns in 

which the allegedly deceptive messages were communicated to consumers repeatedly 

and over various communication channels.” GX303 ¶31. Moreover, courts have held 

that failure to replicate advertising and websites does not render survey results 

irrelevant. See FTC v. LendingClub Corp., 2020 U.S. Dist. LEXIS 95703, at *39 (N.D. Cal. 

June 1, 2020). 

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While Intuit argues throughout its Motion that the instant case requires extrinsic 

evidence on par with trademark cases, e.g., MIL at 5, the issues in the trademark cases 

cited are vastly different and involve comparing consumer confusion between two 

trademarks, which naturally requires showing consumers those trademarks. See, e.g., 

Louis Vuitton Malletier v. Dooney & Bourke, Inc., 525 F. Supp. 2d 558, 562 (S.D.N.Y. 2007) 

(“In cases arising under the Lanham Act, the Court’s gatekeeper function is of 

heightened importance because the pivotal legal question virtually demands expert 

survey research on issues such as consumer perception”) (cleaned up). 

Professor Novemsky’s Survey clearly helps the Court assess the impressions and 

misimpressions consumers have formed based on Intuit’s marketing of a “free” 

TurboTax option over several years and across multiple channels. 

III. Professor Novemsky Used Well-Established and Reliable Survey

Methodology to Design the Survey 

In determining whether a consumer survey is methodologically sound, the Court 

should consider whether it “draws[s] valid samples from the appropriate population, 

ask[s] appropriate questions in ways that minimize bias, and analyze[s] results 

correctly.” In re Thompson Med. Co., 104 F.T.C. 648, 790 (1984), aff'd, 791 F.2d 189 (D.C. 

Cir. 1986). The Court need 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. See In re Bristol-Myers Co., 85 F.T.C. 688, 743-44 (1975). 

“Flaws in the methodology may affect the weight that is given to the results of the copy 

test or other consumer survey.” In re POM Wonderful LLC, 2012 FTC LEXIS 106, *486–87 

(F.T.C. May 17, 2012). And the “perceived flaws in an expert’s testimony ... should be 

... tested in the crucible of the adversarial system, not [serve] as the basis for truncating 

that process.” McWane, 2012 FTC LEXIS 142, at *10-11 (cleaned up). 

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Not only did Professor Novemsky design a reliable survey, but any doubts that 

this Court may have about his survey methodology can be appropriately addressed at 

the Hearing. 

A. Sampling Methodology Was Appropriate and Reliable 

In selecting the Survey sample, Professor Novemsky applied reliable methods, 

including by properly identifying the survey population at issue. Intuit raises various 

concerns with Professor Novemsky’s sampling methodology which are unpersuasive. 

First, Intuit claims that because Professor Novemsky allowed consumers to opt 

out of the survey and did not record responses by consumers who opted out, the survey 

responses are biased. MIL at 6. This proposition is absurd, as it would necessarily lead 

to the conclusion that government agencies complying with Privacy Act requirements 

can never conduct reliable surveys. Moreover, Professor Novemsky provides analysis in 

his report that, even assuming all respondents who opted out did not have the 

misimpression that they could file for free, the Survey establishes significant levels of 

misimpressions. See GX303 ¶71. Additionally, courts have found that disclosure of a 

survey’s sponsor is not fatal. LendingClub, 2020 U.S. Dist. LEXIS 95703, at *42. 

Intuit also claims that because Professor Novemsky included only those 

respondents who had not yet filed their taxes in Mach 2022, his results are infirm. MIL 

at 7. But as explained above, the sampling methodology properly considered important 

factors and captured consumer impressions during a time when consumers are most 

likely to be actively engaged in the selection of a tax filing method, see supra p.2. Even 

assuming, arguendo, that consumers who filed later in the tax filing season differed in 

some significant way from consumers filing early, as Intuit seems to argue, MIL at 6-7, 

the Survey provides information representative of millions of tax filers. 

Intuit’s argument that the Survey was biased because it did not include 

consumers who were eligible to file for free ignores that this case is focused on those 

consumers who were not eligible to file for free, as they are most likely to be misled by 

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Intuit’s advertising. Finally, Intuit criticizes Professor Novemsky’s sample for including 

those consumers who may have been aware of litigation against Intuit. MIL at 7. But, if 

anything, litigation-aware consumers or consumers who participated in arbitrations 

would likely be more aware that they could not file for free, biasing the Survey results 

in Intuit’s favor. 

B. Survey Design Was Appropriate and Reliable 

Intuit insists that drawing reliable conclusions about the source of consumer 

misimpressions about individual ads requires a test and control design. MIL at 7-8. 

While this may be the case when considering individual ads, it is not when testing a 

widely disseminated advertising campaign, which was this Survey’s objective. 

The survey methodology employed by Professor Novemsky is routinely applied, 

and in fact used by Intuit’s own expert. See RX1017 ¶103.2 And while having some 

control is important, “[t]here is nothing in Commission precedent that requires the use 

of a control ad for closed-ended questions.” In re Stouffer 1994 FTC LEXIS 196, *31 (Sept. 

26, 1994). Courts routinely admit surveys that do not use a control group. See, e.g., Clicks 

Billiards, Inc. v. Sixshooters Inc., 251 F.3d 1252, 1262 (9th Cir. June 1, 2001); see also 

Moroccanoil, Inc. v. Marc Anthony Cosmetics, Inc., 2014 U.S. Dist. LEXIS 184585, *25 (C.D. 

Cal. Oct. 7, 2014). The decision not to employ a control group can be mitigated by 

“other methods to prevent bias, e.g., including ‘none of the above,’ ‘don’t know/can’t 

recall’ and ‘other’ as possible answers to closed-ended questions.” In re NJOY Consumer 

Class Action Litig., 120 F. Supp. 3d 1050, 1078 (C.D. Cal. Aug. 14, 2015). These are 

precisely the measures employed by Professor Novemsky in the design of the Survey. 

See GX749 ¶26. 

2 Intuit points to prior testimony by Professor Novemsky in an attempt to undermine 

his credibility. MIL at 8. However, during his deposition, Professor Novemsky 

explained that his experience since providing that testimony as well as the

circumstances surrounding Intuit’s pervasive marketing campaign, and academic 

literature support his survey design and opinions in this matter. Novemsky Tr. 79:1- 82:2. 

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CONCLUSION 

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

Respectfully submitted, 

Dated: February 24, 2023 /s/ Rebecca Plett 

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 Inc.’s Motion to Exclude Testimony of 

Professor Nathan Novemsky 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 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/ Rebecca Plett 

Rebecca Plett 

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