PUBLIC

FEDERAL TRADE COMMISSION | OFFICE OF THE SECRETARY | FILED 05/23/2023 OSCAR NO. 607741 -PAGE Page 1 of 137 * PUBLIC * 

UNITED STATES OF AMERICA

BEFORE THE FEDERAL TRADE COMMISSION

OFFICE OF ADMINISTRATIVE LAW JUDGES

Docket No. 9408 In the Matter of:

Intuit Inc., a corporation.

RESPONDENT INTUIT INC.S POST-TRIAL BRIEF
 

 

PUBLIC

FEDERAL TRADE COMMISSION | OFFICE OF THE SECRETARY | FILED 05/23/2023 OSCAR NO. 607741 -PAGE Page 2 of 137 * PUBLIC * 

TABLE OF CONTENTS

Page

TABLE OF AUTHORITIES ......................................................................................................... iv 

INTRODUCTION ...........................................................................................................................1 

BACKGROUND .............................................................................................................................8

A. Intuit And Its TurboTax Products............................................................................8 

B. Consumers With Simple Tax Returns Are Eligible To Use

TurboTax Free Edition, Live Assisted Basic, And Full Service

Basic.........................................................................................................................9 

C. TurboTaxs Free Products......................................................................................10 

D. Intuits Free Advertising ........................................................................................13 

1. Intuits advertising strategy ........................................................................13 

2. Current free TurboTax advertisements......................................................14 

3. Challenged advertisements ........................................................................16 

E. Competitor Advertisements...................................................................................20 

F. The TurboTax Website ..........................................................................................21 

G. The Settlement Agreement And Consent Order....................................................25 

H. Procedural History .................................................................................................26 

1. Pre-hearing proceedings.............................................................................26 

2. The trial......................................................................................................27 

a. Complaint Counsels case-in-chief................................................27 

b. Intuits case-in-chief ......................................................................30 

c. Complaint Counsels rebuttal case.................................................34 

ARGUMENT .................................................................................................................................35 

I. COMPLAINT COUNSEL FAILED TO MEET THEIR BURDEN TO PROVE THAT 

THE CHALLENGED ADS CONVEYED ANY OF THE CLAIMS THEY ALLEGE..........................36 

i
 

 

 

 

 

 

 

PUBLIC

FEDERAL TRADE COMMISSION | OFFICE OF THE SECRETARY | FILED 05/23/2023 OSCAR NO. 607741 -PAGE Page 3 of 137 * PUBLIC * 

A. The Challenged Ads Made None Of The Express Claims

Complaint Counsel Allege.....................................................................................37 

B. The Challenged Ads Did Not Imply Any Of The Claims Complaint

Counsel Allege.......................................................................................................39 

1. The challenged ads conveyed that there were qualifications

to use the SKU advertised ..........................................................................40 

2. Intuit never intended to imply that all TurboTax products

are free or that any given TurboTax product was free for

those not eligible........................................................................................46 

II. COMPLAINT COUNSEL FAILED TO PROVE THAT A SIGNIFICANT MINORITY

OF REASONABLE CONSUMERS WAS LIKELY TO BE DECEIVED ..........................................49 

A. Complaint Counsels Theory Of Deception Is Misplaced And 

Unsupported ...........................................................................................................49 

B. Reasonable Consumers Understand That Free Offers Are Qualified

And Are Skeptical Of Those Offers.......................................................................56 

C. The Ads Communicated To Consumers The Limitations On The

Free Offer Being Advertised ..................................................................................63 

1. Explicit SKU identification........................................................................63 

2. Simple tax returns only...........................................................................64 

3. See If You Qualify At TurboTax.com or See Details At

TurboTax.com..........................................................................................68 

D. The Extrinsic Evidence Does Not Reflect That A Significant

Minority Of Reasonable Consumers Was Likely To Be Deceived .......................71 

1. Professor Novemskys survey does not show that Intuits

ads were likely to deceive reasonable consumers......................................71 

2. The paltry number of consumer complaints lodged over

Intuits ads proves that no significant minority of

reasonable consumers was likely deceived ................................................82 

4. Reliable consumer testing and survey evidence reflect that

no significant minority of reasonable consumers was likely 

deceived .....................................................................................................92 

E. Detailed Information Is Clear, Upfront, And Ubiquitous At

TurboTax.com........................................................................................................96 

ii
 

 

 

 

PUBLIC

FEDERAL TRADE COMMISSION | OFFICE OF THE SECRETARY | FILED 05/23/2023 OSCAR NO. 607741 -PAGE Page 4 of 137 * PUBLIC * 

III. COMPLAINT COUNSEL FAILED TO PROVE MATERIALITY....................................................98 

IV. NO CEASE-AND-DESIST ORDER IS WARRANTED..............................................................101 

A. Complaint Counsel Do Not Challenge Intuits Current Ads And 

Unrebutted Evidence Shows That Those Ads Are Not Deceptive ......................102 

B. Intuits Free TurboTax Advertising Is Already Subject To 

Injunctive Terms Enforceable By Every State And The District Of

Columbia That Prohibit All The Conduct Complaint Counsel Seek 

To Enjoin .............................................................................................................104 

C. Intuit Is, And Has Always Been, Committed To Clarity In Its Free

(And Other) Advertising ......................................................................................107 

D. The Proposed Order Would Be Harmful To Consumers.....................................110 

V. THE STATUTE OF LIMITATIONS AND LACHES BAR CONSIDERATION OF

OUTDATED ADVERTISEMENTS ..........................................................................................113 

A. Statute Of Limitations..........................................................................................113 

B. Laches..................................................................................................................115

VI. THIS PROCEEDING IS UNCONSTITUTIONAL .......................................................................116 

A. The FTCs Administrative Process Violates Due Process...................................117 

B. The FTCs Structure Violates The Separation Of Powers...................................119 

C. Congress Unconstitutionally Delegated Legislative Power To The

FTC......................................................................................................................121 

D. Intuits Due-Process Rights Have Been Violated By The Reality 

Or Appearance Of Prejudgment...........................................................................122 

CONCLUSION............................................................................................................................125 

iii
 

PUBLIC

FEDERAL TRADE COMMISSION | OFFICE OF THE SECRETARY | FILED 05/23/2023 OSCAR NO. 607741 -PAGE Page 5 of 137 * PUBLIC * 

TABLE OF AUTHORITIES

CASES

Page(s)

Adams v. Woods, 6 U.S. (2 Cranch) 336 (1805)..........................................................................115 

Already, LLC v. Nike, Inc., 568 U.S. 85 (2013)...........................................................................105 

American Beverage Assn v. City & County of San Francisco, 916 F.3d 749

(9th Cir. 2019)..................................................................................................................113

American Cyanamid Co. v. FTC, 363 F.2d 757 (6th Cir. 1966)..........................................124, 125 

Amstar Corp. v. Dominos Pizza, Inc., 615 F.2d 252 (5th Cir. 1980) ...........................................79

Apotex Inc. v. Acorda Therapeutics, Inc., 823 F.3d 51 (2d Cir. 2016)..........................................99 

Axon Enterprise, Inc. v. FTC, 143 S.Ct. 890 (2023)....................................................117, 118, 119

Axon Enterprise, Inc. v. FTC, 986 F.3d 1173 (9th Cir. 2021).....................................................118 

Bell v. Publix Super Markets, Inc., 982 F.3d 468 (7th Cir. 2020) ...........................................52, 69 

Benco Dental Supply Co., 2019 WL 5419393 (F.T.C. Oct. 15, 2019)................................102, 107 

Book-of-the-Month Club, 48 F.T.C. 1297 (1952)........................................................................101 

Chafin v. Chafin, 568 U.S. 165 (2013)........................................................................................105

Cinderella Career & Finishing Schools, Inc. v. FTC, 425 F.2d 583 (D.C. Cir. 

1970) ................................................................................................................122, 124, 125 

Citizens Financial Group, Inc. v. Citizens National Bank of Evans City, 

383 F.3d 110 (3d Cir. 2004)...............................................................................................79

Cliffdale Associates, Inc., 103 F.T.C. 110 (1984)..........................................................................40 

Collins v. Yellen, 141 S.Ct. 1761 (2021) .....................................................................................120 

Coro, Inc. v. FTC, 338 F.2d 149 (1st Cir. 1964) .........................................................................102 

Critcher v. LOreal USA Inc., 2019 WL 3066394 (S.D.N.Y. July 11, 2019) ...............................62 

DelCostello v. International Brotherhood of Teamsters, 462 U.S. 151 (1983)...................113, 115 

Dinan v. Sandisk LLC, 2019 WL 2327923 (N.D. Cal. May 31, 2019)..........................................56 

Ebner v. Fresh, Inc., 838 F.3d 958 (9th Cir. 2016) ...........................................................56, 62, 65 

iv 
PUBLIC

FEDERAL TRADE COMMISSION | OFFICE OF THE SECRETARY | FILED 05/23/2023 OSCAR NO. 607741 -PAGE Page 6 of 137 * PUBLIC * 

ECM Biofilms, Inc., 159 F.T.C. 276 (2015).................................................................................110

Edward J. DeBartolo Corp. v. Florida Gulf Coast Building & Construction 

Trades Council, 485 U.S. 568 (1988)..............................................................................115 

Estrella-Rosales v. Taco Bell Corp., 2020 WL 1685617 (D.N.J. Apr. 7, 2020) .....................42, 45 

Fanning v. FTC, 821 F.3d 164 (1st Cir. 2016) ..................................................................35, 36, 40 

Fast Food Workers Committee v. NLRB, 31 F.4th 807 (D.C. Cir. 2022)....................................122 

Fish v. Kobach, 309 F.Supp.3d 1048 (D. Kan. 2018)....................................................................74 

Fish v. Schwab, 957 F.3d 1105 (10th Cir. 2020)...........................................................................74

Free Enterprise Fund v. Public Company Accounting Oversight Board, 

561 U.S. 477 (2010).................................................................................................119, 120 

FTC Policy Statement on Deception, 103 F.T.C. 174 (1984)............................................40, 43, 99 

FTC v. Cement Institute, 333 U.S. 683 (1948) ............................................................................102 

FTC v. Centro National Corp., 2014 WL 7525697 (S.D. Fla. Dec. 10, 2014)............................114 

FTC v. DirecTV, Inc., 2015 WL 9268119 (N.D. Cal. Dec. 21, 2015).........................................116 

FTC v. DirecTV, Inc., 2018 WL 3911196 (N.D. Cal. Aug. 16, 2018) ......35, 42, 45, 49, 54, 55, 63 

FTC v. Hang-Ups Art Enterprises, Inc., 1995 WL 914179 (C.D. Cal. 

Sept. 27, 1995).................................................................................................................116 

FTC v. Merchandise Services Direct, LLC, 2013 WL 4094394 (E.D. Wash. 

Aug. 13, 2013) .................................................................................................................107 

FTC v. Ruberoid Co., 343 U.S. 470 (1952).................................................................................102 

FTC v. Shkreli, 581 F.Supp.3d 579 (S.D.N.Y. 2022)..................................................................110 

FTC v. Walmart Inc., 2023 WL 2646741 (N.D. Ill. Mar. 27, 2023) ...........................................110 

Gabelli v. SEC, 568 U.S. 442 (2013)...........................................................................................114 

Gundy v. United States, 139 S.Ct. 2116 (2019)...........................................................................121 

Hamdi v. Rumsfeld, 542 U.S. 507 (2004) ....................................................................................117 

Harris v. Las Vegas Sands L.L.C., 2013 WL 5291142 (C.D. Cal. Aug. 16, 2013).................51, 54 

Held v. Manufacturers Hanover Leasing Corp., 912 F.2d 1197 (10th Cir. 1990) ......................114 

Holmberg v. Armbrecht, 327 U.S. 392 (1946).............................................................................115 

v 
 

 

 

PUBLIC

FEDERAL TRADE COMMISSION | OFFICE OF THE SECRETARY | FILED 05/23/2023 OSCAR NO. 607741 -PAGE Page 7 of 137 * PUBLIC * 

Humphreys Executor v. United States, 295 U.S. 602 (1935) .....................................................119 

iMortgage Services, LLC v. Louisiana Real Estate Appraisers Board, 

2023 WL 2254528 (M.D. La. Feb. 27, 2023)..........................................................105, 106 

In re Autozone, Inc., 2016 WL 4208200 (N.D. Cal. Aug. 10, 2016) ......................................77, 79 

In re Fluidmaster, Inc., Water Connector Components Product Liability

Litigation, 2017 WL 1196990 (N.D. Ill. Mar. 31, 2017)...................................................79 

Instant Media, Inc. v. Microsoft Corp., 2007 WL 2318948 (N.D. Cal. 

Aug. 13, 2007) ...................................................................................................................72 

Intel Corp., 149 F.T.C. 1548 (2010)............................................................................................124 

Jarkesy v. SEC, 34 F.4th 446 (5th Cir. 2022) ..............................................................120, 121, 122 

Little Caesars Enterprises, Inc. v. Smith, 895 F.Supp. 884 (E.D. Mich. 1995).............................43 

Liquormart, Inc. v. Rhode Island, 517 U.S. 484 (1996) ..............................................................118 

Lucia v. SEC, 138 S.Ct. 2044 (2018)...........................................................................................120 

Malletier v. Dooney & Bourke, Inc., 525 F.Supp.2d 558 (S.D.N.Y. 2007)...................................79

Marksberry v. FCA US LLC, 606 F.Supp.3d 1075 (D. Kan. 2022).........................................56, 69 

Moore v. Trader Joes Co., 4 F.4th 874 (9th Cir. 2021)..........................................................52, 69 

Morrison v. Olson, 487 U.S. 654 (1988) .....................................................................................119 

New Standard Publishing Co. v. FTC, 194 F.2d 181 (4th Cir. 1952) .........................................102 

New York v. Meta Platforms, Inc., 66 F.4th 288 (D.C. Cir. 2023) ..............................................116 

National Institute of Family & Life Advocates v. Becerra, 138 S.Ct. 2361 (2018).....................112

Oceanic Steam Navigation Co v. Stranahan, 214 U.S. 320 (1909).............................................121 

Panama Refining Co. v. Ryan, 293 U.S. 388 (1935) ...................................................................121 

Petrella v. Metro-Goldwyn-Mayer, Inc., 572 U.S. 663 (2014)....................................................115 

Platt v. Winnebago Industries, Inc., 960 F.3d 1264 (10th Cir. 2020)............................................69 

Reed v. United Transportation Union, 488 U.S. 319 (1989).......................................................113 

Reinsdorf v. Skechers U.S.A., 922 F.Supp.2d 866 (C.D. Cal. 2013) .............................................72

Resort Car Rental Systems, Inc., 83 F.T.C. 234 (1973).................................................................53 

vi
PUBLIC

FEDERAL TRADE COMMISSION | OFFICE OF THE SECRETARY | FILED 05/23/2023 OSCAR NO. 607741 -PAGE Page 8 of 137 * PUBLIC * 

Resort Car Rental Systems, Inc. v. FTC, 518 F.2d 962 (9th Cir. 1975) ........................................53 

Rothensies v. Electric Storage Battery Co., 329 U.S. 296 (1946)...............................................115 

S.C. Johnson & Son, Inc. v. Clorox Co., 241 F.3d 232 (2d Cir. 2001)..........................................40 

Seila Law, LLC v. CFPB, 140 S.Ct. 2183 (2020)........................................................................119 

South Carolina State Board of Dentistry, 138 F.T.C. 229 (2004)...............................................105 

South Ogden CVS Store, Inc. v. Ambach, 493 F.Supp. 374 (S.D.N.Y. 1980)...............................70 

Southwest Sunsites, Inc. v. FTC, 785 F.2d 1431 (9th Cir. 1986)...................................................56 

Starter Corp. v. Converse, Inc., 170 F.3d 286 (2d Cir. 1999) .......................................................72 

Stouffer Foods Corp., 118 F.T.C. 746 (1994)..............................................................................107 

Telebrands Corp., 140 F.T.C. 278 (2005) .................................................35, 36, 40, 46, 49, 71, 82 

Thompson Medical Co., 104 F.T.C. 648 (1984)......................................................................35, 37 

TRW v. FTC, 647 F.2d 942 (9th Cir. 1981) .................................................................................107 

United States v. Cooley, 1 F.3d 985 (10th Cir. 1993)..................................................................123 

United States v. H&R Block, Inc., 833 F.Supp.2d 36 (D.D.C. 2011)....................................57, 109 

United States v. Lindberg Corp., 882 F.2d 1158 (7th Cir. 1989) ................................................116 

United States v. W. T. Grant Co., 345 U.S. 629 (1953)...............................101, 102, 105, 107, 110 

University of Kansas v. Sinks, 2008 WL 755065 (D. Kan. Mar. 19, 2008)...................................77 

Valador, Inc. v. HTC Corp., 242 F.Supp.3d 448 (E.D. Va. 2017) ................................................72 

Washington v. Hyatt Hotels Corp., 2020 WL 3058118 (N.D. Ill. June 9, 2020).....................51, 54 

Williams v. Pennsylvania, 579 U.S. 1 (2016) ..............................................................................117 

Withrow v. Larkin, 421 U.S. 35 (1975)........................................................................................118 

Wold v. Robart, 2018 WL 1135396 (E.D. Wis. Feb. 28, 2018)...................................................105 

DOCKETED CASES

FTC v. Facebook, No. 1:20-cv-03590 (D.D.C. Apr. 7, 2021).......................................................62 

FTC v. Kutzner, No. 8:16-cv-00999 (C.D. Cal. Aug. 14, 2017)....................................................79 

FTC v. LendingClub Corp., No. 3:18-cv-02454 (N.D. Cal. Feb. 27, 2020)..................................79 

vii
 

PUBLIC

FEDERAL TRADE COMMISSION | OFFICE OF THE SECRETARY | FILED 05/23/2023 OSCAR NO. 607741 -PAGE Page 9 of 137 * PUBLIC * 

Illumina, Inc. & GRAIL, Inc., No. 9401 (F.T.C. Apr. 3, 2023) ...................................................118 

STATUTES

5 U.S.C. 

§1202................................................................................................................................120 

§7521................................................................................................................................120 

15 U.S.C. 

§41....................................................................................................................................119 

§45......................................................................................................................26, 101, 121 

§53....................................................................................................................................121 

§57b..................................................................................................................................113 

Cal. Civ. Code §1783 ...................................................................................................................113 

D.C. Code §28-3904 ....................................................................................................................113 

N.Y. C.P.L.R. §214 ......................................................................................................................113 

REGULATIONS

16 C.F.R. §3.43 ......................................................................................................................37, 101 

OTHER AUTHORITIES

Code of Conduct for U.S. Judges Canon 3 (eff. Mar. 12, 2019) .................................................123 

Statement of Commissioner Rebecca Kelly Slaughter Joined by Chair Lina Khan 

and Commissioner Alvaro M. Bedoya Regarding the Issuance of a Notice

of Penalty Offenses on Substantiation of Product Claims (Mar. 31, 2023), 

https://www.ftc.gov/system/files/ftc_gov/pdf/rks_substantiation_pno_

statement_lk_ab_final.pdf..................................................................................................48

viii
 

 

 

 

 

PUBLIC

FEDERAL TRADE COMMISSION | OFFICE OF THE SECRETARY | FILED 05/23/2023 OSCAR NO. 607741 -PAGE Page 10 of 137 * PUBLIC * 

INTRODUCTION

Complaint Counsel seek a do-over from their unsuccessful attempt to enjoin in federal

court the very same advertisements they challenge here. The judge in that case rejected the

injunction request that Complaint Counsel renew here after correctly observing that nobody

believes Complaint Counsels theory of deception. On the full evidentiary record now created, it

is even clearer that Complaint Counsel have not met their burden of proving that the challenged 

advertisements are deceptive. After a three-year investigation and another year of fact discovery, 

Complaint Counsel did not come forward at trial with evidence that proves any of the elements

of their claim. Complaint Counsel instead sought to carry their burden merely by introducing 

advertisements into the record, establishing that those advertisements ran, and arguing to the

Court why they think the ads are deceptive. But argument is not evidence, and the evidence in 

the record compels the conclusion that the Intuits ads were not deceptive in years past, are not

deceptive now, and most certainly will not be deceptive going forward. Complaint Counsels bid 

for another bite at the apple should be rejected, judgment should be entered in Intuits favor, and 

a cease-and-desist order should not be issued.

1. Complaint Counsels theory of deception, to the extent one remains, is baffling. 

The challenged ads are for products that are freeno one can pay for those products, even if

anyone wanted to. That fact is not genuinely disputed. Complaint Counsels theory is instead 

that the ads are deceptive because not every taxpayer in the United States can use the free

product, and some people who see one or more of the ads might think that they can use it when 

they cant. If this were true, it could have been proven, whether through a reliable, test-andcontrol study; a meaningful number of genuine consumer complaints; or other extrinsic evidence

consistent with deception. But Complaint Counsel offered none of that. The survey offered 

through Professor Nathan Novemsky was not reliable for myriad reasons, including that it was

1 
 

 

 

 

 

PUBLIC

FEDERAL TRADE COMMISSION | OFFICE OF THE SECRETARY | FILED 05/23/2023 OSCAR NO. 607741 -PAGE Page 11 of 137 * PUBLIC * 

not a test-and-control survey and that participants were not shown a single one of the ads that

were the subject of the survey (and of this case). And after what the parties agree was a multiyear, multi-channel, multi-modal advertising campaign where the challenged ads were served to 

consumers billions of times, Complaint Counsels (inflated) estimate of 228 consumer

complaints is only 0.0003% of the number of unique consumers who used TurboTax during that

same time. As an article written by an FTC economist confirms, this is many orders of

magnitude lower than the volume of complaints one sees when advertisements are truly 

deceptive.

What is perhaps most striking about Complaint Counsels theory, however, is that it

depends on the assumption that Intuit acted contrary to its economic interests, i.e., in ways that

would harm rather than help Intuits bottom line. In successful FTC deception cases, the theory 

is that the deception would further the defendants economic interests because consumers are

fooled into buying a product that they otherwise would not have bought. But here, Intuits fact

witnessescurrent and former senior executives in the TurboTax businessall testified credibly 

and without rebuttal that the deception alleged would have threatened the businesss viability.

That testimony was buttressed by the expert analysis and opinions of economist Bruce Deal and 

Professor Peter Golder. There is also no evidence that any consumer who paid to use TurboTax 

would not have done so absent the challenged advertisements. 

Complaint Counsels theory of deception is also refuted by the challenged ads

themselves, which, as the Court heard or observed, all contain multiple disclosures that meet or

exceed industry benchmarks based on the FTCs own guidelines. And the theory ignores the

TurboTax website along with its mobile app equivalent, which consumers must visit before

paying anything to file their taxes with TurboTaxin fact the challenged ads encourage

2 
 

 

 

PUBLIC

FEDERAL TRADE COMMISSION | OFFICE OF THE SECRETARY | FILED 05/23/2023 OSCAR NO. 607741 -PAGE Page 12 of 137 * PUBLIC * 

consumers to visit the websiteand which contain an abundance of prominent disclosures about

the qualifications to file for free (along with tools to help consumers find the right TurboTax 

product for them). 

Finally, the key point underpinning Complaint Counsels theory that supposedly twothirds of all U.S. taxpayers do not qualify for TurboTaxs free products was shown to be

completely irrelevant. As the Court recognized in opening statements, that figure (itself

inaccurate) is a useless benchmark. About half of all taxpayers do not consider online tax 

preparation at all. And a significant percentage of the rest have very complex tax returns and 

thus could not have reasonably believed that a product for simple tax returns only (as the

challenged ads described TurboTaxs free products) was one they could use. Looking at relevant

benchmarks, most American taxpayers who file their taxes online are eligible to file their federal

and state taxes for free using TurboTax Free Editionand well over ten million taxpayers do so 

each year, including (each year) the vast majority of new TurboTax consumers. Intuit was thus

advertising a free product that reached its intended audience: consumers who most likely 

qualified to use it.

2. Complaint Counsels evidentiary failings, and the mountain of evidence refuting 

their arguments, doom their case with respect to each element of deception: (1) the express or

implied claims conveyed by the challenged ads, (2) whether a significant minority of reasonable

consumers were likely to take away a misleading claim, and (3) whether any such claim was

material. 

First, Complaint Counsel have failed to establish that any of the challenged ads expressly 

or implicitly conveyed any of the deceptive claims Complaint Counsel allege. Inexplicably, 

Complaint Counsel maintain that this is an express-claim case in which the challenged ads said 

3 
 

 

 

 

 

 

 

PUBLIC

FEDERAL TRADE COMMISSION | OFFICE OF THE SECRETARY | FILED 05/23/2023 OSCAR NO. 607741 -PAGE Page 13 of 137 * PUBLIC * 

that TurboTax is free, or TurboTax is free for them, or TurboTax is free for me. As

Complaint Counsel have conceded, none of the challenged ads made any such statement. 

Complaint Counsels express-claim theory must therefore be rejected. 

Nor have Complaint Counsel proved that the challenged ads implied any misleading 

claims. The challenged adsas the Court repeatedly saw and heard at trialmade clear in 

writing, and often verbally, both the specific TurboTax product being advertised and the fact that

the free product was for simple tax returns only. Many of the ads also pointed consumers to 

the TurboTax website to see if you qualify or see details. And many others included (or

themselves were) hyperlinks that took consumers to the TurboTax website, where full details on 

eligibility was readily accessible. Considering the ads as a whole, including their disclosures, it

would not have been reasonable for customers to believe from any of the challenged ads that all

TurboTax products were free or even that TurboTax was necessarily free for them. 

Unsurprisingly given the ads content, Complaint Counsels implied-claim theory has

already, as noted at the outset, been rebuffed by a federal judge. Judge Charles Breyer in the

Northern District of California examined the challenged ads and observed that they dont say it

is free to everybody. PFF ¶15. And looking at one ad, he noted that the disclosure is right

there; isnt it? ... it says TurboTax free edition, for simple tax returns only, PFF ¶15. That is

as true now as it was a year ago. 

The unrebutted evidence of what Intuit intended to convey in the challenged ads provides

further support for rejecting the notion that the ads implied any of the misleading claims

Complaint Counsel allege. Every Intuit executive (current or former) who testified at trial

explained that Intuits intent in running the challenged ads was to convey that a particular free

TurboTax product or offer was available, and was for qualifying consumers only. Each witness

4 
 

 

 

 

 

PUBLIC

FEDERAL TRADE COMMISSION | OFFICE OF THE SECRETARY | FILED 05/23/2023 OSCAR NO. 607741 -PAGE Page 14 of 137 * PUBLIC * 

also testified that Intuit would never run advertising it thought was deceptive, and would have

immediately stopped running ads if there were any indication of deception. Lastly, the witnesses

testified that Intuit would have go[ne] out of business if Intuit had run a multiyear, multi-ad, 

multichannel, multimodal, integrated marketing campaign that was deceptive. PFF ¶647. Intuit

is aware of no other deceptive-advertising case in which the advertiser would have suffered from

the alleged deception. 

Second, Complaint Counsel have failed to prove that a significant minority of reasonable

consumers were likely to be deceived, i.e., likely to take away from the challenged ads the

alleged misleading claims. Complaint Counsels deceptive door opener theorywhich is all

that is left in the case in light of the concessions that Complaint Counsel and its witnesses made

at trialis both legally and factually infirm. Legally, deceptive advertising claims must take

into account all information readily available to consumers. Here, that includes the TurboTax 

website, which is expressly mentioned in many of the challenged ads (including all of the video 

ads) and linked to directly by the remaining ads. Complaint Counsel and their witnesses

conceded that the information on the website addresses any customer confusion. Complaint

Counsel offer no legal or factual support for their theory that the ads were deceptive simply 

because consumers may have briefly visited the TurboTax website to obtain additional details

about Intuits free offers. 

Complaint Counsels theory fares no better considering the evidence. To begin, 

Complaint Counsel drastically underestimate reasonable consumers in this industry, calling them

lazy misers. Suffice to say, Complaint Counsel were unable to substantiate that offensive

theory. And aside from the Novemsky survey, which is flawed for the reasons mentioned above

(and below), Complaint Counsel tried to prove deception by citing 228 consumer complaints

5 
 

 

PUBLIC

FEDERAL TRADE COMMISSION | OFFICE OF THE SECRETARY | FILED 05/23/2023 OSCAR NO. 607741 -PAGE Page 15 of 137 * PUBLIC * 

filed over the course of six years. But those complaintssome of which were not even about

TurboTax or its advertisingconstitute an incredibly tiny fraction of the millions of consumers

who saw the challenged ads and filed their taxes with TurboTax. Professor Golders complaint

benchmarking analysis likewise reflects that consumers have not complained about Intuit at rates

that reflect deception. The evidence regarding complaints thus proves that no significant

minority of reasonable consumers was likely deceived. 

The substantial fact and expert evidence Intuit offered (despite having no burden of

proof) confirms that. Dr. John Hausers Disclosure Efficacy Survey, for example, showed that

modifying TurboTaxs marketing as Complaint Counsel have said was necessary to avoid 

deception had no effect on consumer behavior. Intuits witnesses also explained that various

metrics show consumers were not deceived. Those include the fact that the vast majority of

Intuit consumers who start filing their taxes in a free product finish using that product, that

customers abandon TurboTax Free Edition at the same rate as TurboTaxs paid products, and 

that most new TurboTax customers use Free Edition. Lastly, Bruce Deals analysis of

TurboTaxs Tax Year 2021 customer data showed that there was no evidence of the widespread 

deception alleged by Complaint Counsel, because most of the consumers at issue had previous

experience with TurboTax where they would have necessarily learned that they did not qualify 

for free tax filing. 

Third, Complaint Counsel did not prove that any of the allegedly deceptive claims were

material. Complaint Counsel did not show that those claims affected consumers decisions to

visit the TurboTax website, or that the mere act of visiting the TurboTax website establishes the

materiality of the challenged ads. To the contrary, a Complaint Counsel expert conceded that it

took only a few seconds to reach the TurboTax website, and that once there it took only five

6 
 

 

 

PUBLIC

FEDERAL TRADE COMMISSION | OFFICE OF THE SECRETARY | FILED 05/23/2023 OSCAR NO. 607741 -PAGE Page 16 of 137 * PUBLIC * 

to ten seconds to encounter full eligibility information for free TurboTax offers. PFF ¶790. 

There is no basis for concluding that the challenged ads made materially deceptive claims merely 

because consumers visited the precise location where the qualifications for free TurboTax offers

were clearly and accessibly stated.

3. Merits aside, Complaint Counsel did not meet their burden to show that any

cease-and-desist order, let alone the massively overbroad order they seek in this case, is

warranted. Complaint Counsel made clear that they are not challenging Intuits current

advertising (as to which they offered no evidence of deceptiveness). And Intuits uncontested 

evidenceincluding a Tax Year 2022 copy test that showed that consumers were not misled by 

Intuits current adsestablishes that Intuits current advertising is not deceptive. Complaint

Counsel thus had to rely on past ads to show that relief was necessary to prevent future

violations. They did not do so, because any allegedly deceptive conduct in any past ads is

already enjoined by Intuits consent order with the attorneys general of all 50 states and the

District of Columbia. That binding order, enforceable in California state court (and elsewhere), 

both moots Complaint Counsels claim and assures that Intuits advertisements will continue to 

comply with the law going forward. Confirming that, Intuit presented unrebutted testimony from

its executives that the company has complied with the consent order and has processes in place

to ensure that it will continue to do so. That testimony is consistent with other evidence of

Intuits longstanding commitment toand business interest inclarity in its free advertising, 

including the fact that Intuits free ads have continued to improve over time wholly apart from

the consent order and the FTCs investigation, see infra p.14. Complaint Counsel therefore did 

not demonstrate the cognizable danger of future unlawful activity required to obtain injunctive

relief. And if that were not enough, prospective relief is unwarranted because Complaint

7 
 

 

 

PUBLIC

FEDERAL TRADE COMMISSION | OFFICE OF THE SECRETARY | FILED 05/23/2023 OSCAR NO. 607741 -PAGE Page 17 of 137 * PUBLIC * 

Counsels proposed remedy would unconstitutionally compel speech that not only is

unnecessary, but that also (as the Court heard) would harm consumers by discouraging free

filing. Finally, Complaint Counsel never even tried to justify their punitive proposal that their

scattershot order apply to all Intuit products, not just TurboTax. 

4. Complaint Counsels claim is untimely. Section 5 claims should be subject to a

three-year statute of limitations. As such, any advertisements that last ran before January 5, 

2019three years before the date of the tolling agreement in this casemay not be considered. 

The doctrine of laches also, and independently, bars any attempt to punish Intuit for outdated ads

of which the FTC has long been aware. It is inequitable to penalize Intuit for outdated ads when 

the FTC waited years and years, across three different administrations, before filing this case. 

5. Finally, Complaint Counsel cannot prevail because this proceeding is rife with 

constitutional infirmities. The proceeding violates due process (both because of the FTCs

administrative process in general and because of the Commissions conduct in this case), the

separation of powers, and the non-delegation doctrine. These problems are exacerbated in this

case, where Complaint Counsel already triedand were unsuccessfulin the same case, in 

federal court. 

At bottom, Complaint Counsel have failed to marshal any probative evidence of

deception. The reason is simple: The challenged ads are not deceptive.

BACKGROUND

A. Intuit And Its TurboTax Products

Intuit was founded in 1984 with the mission of helping customers manage their finances

through innovative technology. PFF ¶29. For nearly 40 years, it has been a customer-focused 

company that endeavors to deliver leading financial software products that provide customers

with unmatched value and benefit. PFF ¶30. 

8 
 

 

 

 

PUBLIC

FEDERAL TRADE COMMISSION | OFFICE OF THE SECRETARY | FILED 05/23/2023 OSCAR NO. 607741 -PAGE Page 18 of 137 * PUBLIC * 

TurboTax is the brand name of a suite of Intuits online tax-preparation products and 

services. PFF ¶60. The TurboTax brand encompasses three tiers of productsDo-It-Yourself

(DIY), Live Assisted, and Live Full Servicethat offer different levels of tax-filing assistance. 

PFF ¶64. Each tier includes four different products, or SKUs. PFF ¶66. The various SKUs

cover tax situations of different complexity. PFF ¶62. To simplify matters for consumers, 

eligibility for a particular SKU is determined based on the IRS form or forms an individual uses

to file her return. PFF ¶63. 

Intuit is committed to having as many consumers as possible begin preparing their tax 

returns in the SKU that is right for their tax situation. PFF ¶73. Intuit defines the right SKU

as the lowest priced TurboTax product (including a free product) for which the consumers tax 

situation qualifies. PFF ¶74. Getting customers in the right SKU as soon as possible is critical

to TurboTaxs business because consumers who start in the proper SKU have a better overall

experience and thus are more likely to return to TurboTax in future years. PFF ¶¶73, 75-76. 

B. Consumers With Simple Tax Returns Are Eligible To Use TurboTax Free

Edition, Live Assisted Basic, And Full Service Basic

As elaborated in the next subsection, Intuit offers three free TurboTax products: Free

Edition, Live Assisted Basic, and Full Service Basic. PFF ¶67. These products are available to 

consumers who are filing simple tax returns. PFF ¶67. Intuits definition of simple tax 

returns has always aligned with the IRSs, which is a return filed using the most basic IRS form

or forms. PFF ¶122. 

The phrase simple tax return is ubiquitous in the tax-preparation industry. The IRS

itself uses that term, as do state agencies like the California Franchise Tax Board. PFF ¶119, 

122, 142. All major online tax-preparation industry companies do so as well, and in the same

way Intuit does: to describe qualifications for their free product. PFF ¶141. Intuit chose to use

9 
 

 

 

 

PUBLIC

FEDERAL TRADE COMMISSION | OFFICE OF THE SECRETARY | FILED 05/23/2023 OSCAR NO. 607741 -PAGE Page 19 of 137 * PUBLIC * 

the phrase for  alignment and understanding  to reflect the fact that this is the simplest way 

to file using the IRS tax code. PFF ¶123. Conforming with the IRSs definition of simple tax 

returns was important to Intuit because it believes such conformity minimizes consumer

confusion. PFF ¶122. 

Today, a simple tax return is one that can be filed on IRS Form 1040 without any 

attached forms or schedules. PFF ¶¶121, 124. Before Tax Year 2018, the most basic IRS forms

available (and thus the ones whose use made a tax return simple) were Forms 1040EZ and 

1040A. PFF ¶120. The IRS discontinued those forms in response to tax-reform legislation 

enacted in 2017. PFF ¶121. When the IRS changed what qualified as a simple return, Intuit did 

the same. PFF ¶121. If Intuit had not modified its definition of simple tax returns to continue to 

match the IRSs definition, no one would have qualified to use its free TurboTax products. PFF

¶125. 

C. TurboTaxs Free Products

1. To drive long-term customer growth and retention, Intuit offers free TurboTax 

products to consumers with simple returns. PFF ¶83. Intuit hopes that consumers with simple

returns will use a TurboTax product to file for free, have a good experience doing so, and 

thereby develop life-long relationships with Intuit, prompting them to stay with Intuit as their tax 

situations become more complex and thus require the use of paid products. PFF ¶83. Intuits

long-term growth strategy therefore depends not just on getting a simple filer to use a free

product, but on making sure the customer has a positive experience doing so. PFF ¶¶87, 90. 

While all companies strive to retain customers, repeat business is especially important in the taxpreparation industry because the customer base is largely static year to year. PFF ¶44. 

Given the importance of repeat business, Intuit recognizes that creating a mistaken 

expectation amongst consumers who do not qualify to file for free that they do would cause

10 
 

 

PUBLIC

FEDERAL TRADE COMMISSION | OFFICE OF THE SECRETARY | FILED 05/23/2023 OSCAR NO. 607741 -PAGE Page 20 of 137 * PUBLIC * 

consumers to both leave TurboTax and share their dissatisfaction with others. PFF ¶134. That

would erode consumer trust in the TurboTax brand and lower customer retention, hurting Intuits

business. PFF ¶96. 

Intuits data show that it has succeeded in being clear with customers and ensuring that

their experiences match their expectations. TurboTaxs paid SKUs have a customer-retention 

rate of 83%, which is greater than the retention rate for TurboTaxs free SKUs. PFF ¶650. That

high paid retention rate demonstrates that customers derive value from TurboTaxs products and 

use it year-after-year, not that they are angry, dissatisfied, or somehow misled. PFF ¶651. And 

even when customers do leave TurboTax, they do so at the same rate for both free and paid 

products (22%), suggesting that customers leave not because they thought they could file for free

but then couldnt (a reason specific to free products), but for other reasons common to both free

and paid ones. PFF ¶¶656-657. Other metricslike consumer reviewsalso show that

customers expectations regarding their ability to file for free with TurboTax are being met. PFF

¶653. Customers have consistently rated TurboTax products between 4.3 and 4.9 out of 5 stars

on the TurboTax website. PFF ¶653. 

2. As noted, one of Intuits free TurboTax products is Free Edition. PFF ¶¶67, 100. 

Over the years, Intuit has repeatedly expanded Free Editions functions to include features that

the company previously offered for a fee. PFF ¶99. For example, in Tax Year 2014, Intuit

launched Absolute Zero, which allowed consumers to file both their federal and state taxes for

free during part of the tax-filing season. PFF ¶102. Then, starting in Tax Year 2018, Intuit

further expanded Free Edition so that consumers could file both federal and state taxes for free

for the entire season. PFF ¶102. Other features that likewise used to require a fee have also been 

made free, such as year-over-year data transfer and Tax Return Access, which allows

11 
 

PUBLIC

FEDERAL TRADE COMMISSION | OFFICE OF THE SECRETARY | FILED 05/23/2023 OSCAR NO. 607741 -PAGE Page 21 of 137 * PUBLIC * 

customers to review their prior years returns. PFF ¶¶106-107. Intuit has even used artificial

intelligence and machine learning to reduce the time it takes to complete a return using Free

Edition and other TurboTax products. PFF ¶108. The goal of these improvements was to get

more consumers to file their taxes for free with TurboTax and have the best experience possible

doing so, again in furtherance of the long-term Intuit business strategy described above. PFF

¶105. 

Today, more than half of consumers who file their taxes online have simple tax returns

and therefore qualify to file for free using Free Edition and other free TurboTax offers. PFF

¶129. More than 60 million U.S. taxpayers have simple returns, and more could file using a

simple tax return but choose not to do so. PFF ¶127-128. Every year, between 11 and 14 

million taxpayers use TurboTaxs free products to file their taxes for free. PFF ¶113. Further, 

( in Tax Year 2018, 

for instance). PFF ¶659. 

3. Intuit has free offers beyond TurboTax Free Edition. For example, during certain 

times of the year it offers both TurboTax Live Basic (which provides expert tax assistance for

do-it-yourself filing) and Live Basic Full Service (which provides a tax professional who 

prepares the return) for free to filers with simple returns. PFF ¶¶109-111. Intuit also allows all

enlisted military personnel (i.e., ranks E-1 to E-9) to file for free in any TurboTax product, 

regardless of the complexity of their returns. PFF ¶¶151-152. In 2022, approximately 627,000 

of the 1.7 million eligible military service members filed their taxes for free using TurboTax. 

PFF ¶154. 

12 
 

PUBLIC

D. Intuits Free Advertising 

1. Intuits advertising strategy

a. Like most consumer-facing businesses, Intuit advertises its products. PFF ¶161. 

FEDERAL TRADE COMMISSION | OFFICE OF THE SECRETARY | FILED 05/23/2023 OSCAR NO. 607741 -PAGE Page 22 of 137 * PUBLIC * 

To increase the likelihood that its TurboTax ads are relevant to the consumers viewing them, 

Intuit targets its advertisements for specific TurboTax products both toward and away from

certain individuals and groups, based on Intuits understanding of what product would likely suit

those consumers tax situations. PFF ¶¶190, 197. 

For its free SKUs, Intuit targets individuals most likely to have simple tax returns, as

these individuals qualify for and are relatively likely to try free TurboTax products. PFF ¶191. 

For example, Intuit targets individuals ages 18-35, as they are more likely than older individuals

to have simple tax situations. PFF ¶¶191-193. 

To reach these demographics, Intuit advertises its free offers through media channels

and platforms that skew heavily towards that population  like Snapchat and TikTok. PFF

¶194. Conversely, where possible, Intuit uses exclusionary targeting to prevent an ad from

being shown to customers for whom it is irrelevant. PFF ¶197. For instance, if Intuit knows that

an individual does not have a simple tax return, Intuit will not intentionally show that person ads

for free products. PFF ¶197. 

b. All ads for free TurboTax products include language that the free offers are

available only for consumers with simple tax returns (or other appropriate qualifying

language). PFF ¶322. Ads for free TurboTax products also identify the specific SKU or offer

that is free (e.g., TurboTax Free Edition). PFF ¶317. And many TurboTax ads for free products

(including all the video ads challenged here) invite consumers to visit the TurboTax website, 

using language like see if you qualify at turbotax.com and see details at TurboTax.com that

reinforces that not everyone is eligible for TurboTaxs free products and directs consumers to the

13 
 

PUBLIC

FEDERAL TRADE COMMISSION | OFFICE OF THE SECRETARY | FILED 05/23/2023 OSCAR NO. 607741 -PAGE Page 23 of 137 * PUBLIC * 

TurboTax website where they could, in fact, see if they qualified to file for free. PFF ¶¶215, 

294, 323. Consumers can reach the TurboTax website by clicking on display ads, paid search 

ads, or email ads (as well as entering the URL directly into their browser). PFF ¶385. 

Intuit aims to improve the clarity of its ads over time. PFF ¶353. To that end, every year

Intuit evaluates ways to improve or clarify how its ads convey any qualifications for TurboTax 

products. PFF ¶353. As part of the ad-development process, Intuits marketing team, outside ad 

agencies, and legal team all review every TurboTax ad to ensure that none is deceptive or

misleading. PFF ¶163. And during that review, multiple stakeholders examine the clarity and 

legibility of the ads disclosures. PFF ¶163. In this processwhich can take up to nine

monthsif a stakeholder believes that a draft TurboTax ad is deceptive or misleading, the ad is

either revised to eliminate the problem, or else it does not make it to the public at all. PFF

¶¶165, 168. 

2. Current free TurboTax advertisements

In Tax Year 2022, Intuit ran ads for Free Edition across television, display, paid-search, 

and email channels. PFF ¶¶337, 342, 347, 350. Intuit also advertised a free Live Assisted Basic

offer, which was available to simple filers through March 31, 2023. PFF ¶¶342, 348. 

An example of Intuits Tax Year 2022 advertising is the television Taxbourine ad. PFF

¶¶340-341. This ad includes a voiceover stating that the offer is only available to consumers

filing a simple return and inviting consumers to see if you qualify at turbotax.com. PFF

¶¶338, 340. Beyond the voiceover, the Taxbourine ad contains a prominent written disclosure

reading Simple U.S. returns only. See if you qualify at turbotax.com. PFF ¶340. And at the

ads conclusion, the TurboTax Free Edition logo is displayed above the written disclosure, as

depicted below. PFF ¶341. 

14 
PUBLIC

FEDERAL TRADE COMMISSION | OFFICE OF THE SECRETARY | FILED 05/23/2023 OSCAR NO. 607741 -PAGE Page 24 of 137 * PUBLIC * 

TurboTaxs Tax Year 2022 display ads for free products all similarly include prominent

written disclosures stating Simple tax returns only. See if you qualify, and each identifies the

product being advertised. PFF ¶342. The video display ads also include a spoken voiceover

stating that free filing is available with simple returns only, and inviting consumers to see if

you qualify at the TurboTax website. PFF ¶343. 

A screenshot of a representative Tax Year 2022 TurboTax video display ad for free filing 

is provided below. PFF ¶344. 

15 
 

 

 

PUBLIC

FEDERAL TRADE COMMISSION | OFFICE OF THE SECRETARY | FILED 05/23/2023 OSCAR NO. 607741 -PAGE Page 25 of 137 * PUBLIC * 

3. Challenged advertisements

Complaint Counsel contend that several hundred of Intuits advertisements across various

channelsvideo, display, search, email, and radiothat ran between Tax Years 2014 and 2021 

were deceptive. PFF ¶¶205, 207. None of the challenged ads stated that TurboTax is free,

TurboTax is free for them, TurboTax is free for you, or TurboTax is free for me. PFF

¶210. All of the ads identified the specific product being advertised and made plain in writing 

that the free offer being advertised was only available to taxpayers with simple tax returns or

similar language. PFF ¶¶215, 248, 266-267, 281, 294. 

Video Ads. Every video ad at issueincluding TurboTax television adsconveyed in 

writing that the free offer was for a specific product, that the offer was available only to 

taxpayers with simple tax returns, and that consumers could find additional information on the

TurboTax website. PFF ¶215. Nearly every video ad at issue also included audio identifying the

TurboTax product or offer being advertised. PFF ¶215. And starting in Tax Year 2021, 

TurboTax video ads included a spoken voiceover inviting consumers to see details at

16 
 

 

 

 

 

PUBLIC

FEDERAL TRADE COMMISSION | OFFICE OF THE SECRETARY | FILED 05/23/2023 OSCAR NO. 607741 -PAGE Page 26 of 137 * PUBLIC * 

turbotax.com, while some also included multiple verbal disclosures stating that offers to file for

free were for simple returns only. PFF ¶218. None of the video ads stated that TurboTax was

free to the viewer or that all TurboTax products were free. PFF ¶242. 

A screenshot of a representative video ad from Tax Year 2021 is provided below. PFF

¶216. 

Display ads. Every challenged display adsuch as online banner ads or social media

adssimilarly conveyed in writing that the free offer was for a specific TurboTax SKU and 

available only to taxpayers with simple tax returns. PFF ¶¶248, 250-251. For static (i.e., nonvideo) display ads, these written disclosures were visible the entire time a consumer would view

the ad. See PFF ¶249. Almost all of the challenged video display ads (which are distinct from

the video ads discussed above) also included a spoken voiceover describing the offers

qualifications. PFF ¶252. For many such ads, simple tax returns only is the first thing 

consumers would have heard when viewing the advertisement. See PFF ¶252. And the display 

ads either were links or provided links that, when clicked, took a consumer to the TurboTax 

websiteor, for TurboTax Free Edition ads, to the Free Edition landing pagewhere they could 

17 
PUBLIC

FEDERAL TRADE COMMISSION | OFFICE OF THE SECRETARY | FILED 05/23/2023 OSCAR NO. 607741 -PAGE Page 27 of 137 * PUBLIC * 

learn more about qualifications. PFF ¶253. Moreover, consumers understood from their

experiences that they could click on online advertisements like display ads to get more

information. PFF ¶254. None of the display ads stated that TurboTax was free to the viewer or

that all TurboTax products were free. PFF ¶260. 

A screenshot of GX198, a representative static display ad, is provided below. PFF ¶249. 

Paid search ads. The challenged search adssuch as those that appeared on Google

likewise conveyed in writing that the free offer was for a specific product and that it had 

qualifications. PFF ¶¶266-267. Because paid search ads are static, moreover, see PFF ¶268, this

language was present the entire time consumers viewed such ads. When consumers clicked on a

search ad, they were taken to the TurboTax website, often the TurboTax Free Edition landing 

page, where they could learn more about qualifications. PFF ¶269. None of the search ads

stated that TurboTax was free to the viewer or that all TurboTax products were free. PFF ¶273. 

18 
PUBLIC

FEDERAL TRADE COMMISSION | OFFICE OF THE SECRETARY | FILED 05/23/2023 OSCAR NO. 607741 -PAGE Page 28 of 137 * PUBLIC * 

A screenshot of one search ad, GX195, is shown below. PFF ¶268. 

Email ads. Each challenged email ad conveyed in writing (often multiple times) that only 

consumers with simple tax returns qualified, and most of the challenged email ads conveyed in 

writing that the free offer was for a specific product. PFF ¶281. Consumers who clicked an 

email ad were taken to the TurboTax website to learn more about qualifications. PFF ¶284. 

None of the email ads stated that TurboTax was free to the viewer or that all TurboTax products

were free. PFF ¶288. 

A representative email ad is provided below. PFF ¶282. 

19 
 

 

PUBLIC

FEDERAL TRADE COMMISSION | OFFICE OF THE SECRETARY | FILED 05/23/2023 OSCAR NO. 607741 -PAGE Page 29 of 137 * PUBLIC * 

Radio ads. Finally, the challenged radio ads conveyed that the free offer was for a

specific product, that only consumers with simple tax returns qualified, and that consumers could 

learn more at the TurboTax website. PFF ¶294. None of the radio ads stated that TurboTax was

free to the listener or that all TurboTax was free. PFF ¶297. 

E. Competitor Advertisements

Like TurboTax, other online tax-preparation companies offer free federal tax-filing 

products that have eligibility qualifications based on customers tax complexity. PFF ¶453. For

example, H&R Block, TaxAct, and TaxSlayerwhich together with TurboTax serve most

taxpayers who use online tax-preparation services, PFF ¶482each provide both (1) a free

version of their tax-preparation software that can be used for filing simple personal tax returns

and (2) tiers of paid offerings that include additional features for more complicated returns. PFF

¶482. 

These competitors advertise their free tax-preparation products using language and 

disclosures similar to those in TurboTaxs free ads. H&R Block, for instance, markets its DIY

20 
 

 

 

PUBLIC

FEDERAL TRADE COMMISSION | OFFICE OF THE SECRETARY | FILED 05/23/2023 OSCAR NO. 607741 -PAGE Page 30 of 137 * PUBLIC * 

Free Online product as limited to taxpayers with simple returns. PFF ¶141. TaxSlayer

similarly limits the eligibility for its free online tax-preparation product, Simply Free, to 

qualifying simple tax situations. PFF ¶141. And TaxActs Free online tax-preparation 

product is billed as being perfect for simple federal filers. PFF ¶141. A screenshot of the title

card of an exemplary TaxSlayer ad is shown below:

PFF ¶457. 

F. The TurboTax Website

1. All consumers who want to use an online TurboTax product must visit the

TurboTax website or mobile application. PFF ¶364. The website is the online equivalent of an 

Intuit brick-and-mortar store, where consumers can learn information about and purchase (or use

for free, depending on their tax situation) every TurboTax SKU. See PFF ¶364. 

Given the importance Intuit places on ensuring that consumers get to the correct SKU as

soon as possible (and ideally from the very start), see supra p.9, Intuit designed the TurboTax 

website to provide, in multiple places, clear, unavoidable, and effective disclosures regarding the

qualifications for TurboTax Free Edition, PFF ¶¶365-367. 

21 
 

PUBLIC

FEDERAL TRADE COMMISSION | OFFICE OF THE SECRETARY | FILED 05/23/2023 OSCAR NO. 607741 -PAGE Page 31 of 137 * PUBLIC * 

Those disclosures begin on the TurboTax homepage. There, references for free products

and services are accompanied by a hyperlinked disclosure, in color-contrasted text, that the offer

is for simple tax returns only. PFF ¶374. Since Tax Year 2019, free promotions have also 

been accompanied by hyperlinked disclosures, in color-contrasted text, that the offer is for

simple tax returns only. PFF ¶374. Other TurboTax webpages, such as the Free Edition 

landing page and the Free Edition [s]ee why its free webpage, have long included similar

qualifications. PFF ¶¶389-390. Earlier versions of the TurboTax website, from Tax Years 2016 

through 2018, also disclosed, in close proximity to Free Edition promotions, that Free Edition 

covered simple tax returns, and included a color-contrasted, hyperlinked disclosure stating 

[s]ee why its free. PFF ¶376. 

A screenshot of the TurboTax homepage from Tax Year 2021 appears below. PFF ¶377. 

When consumers clicked on any of the hyperlinked disclosures on the TurboTax 

homepage or any other page on the TurboTax website, they were shown a pop-up screen that (as

Complaint Counsel recognized) provided consumers with detailed information about the tax 

22 
 

PUBLIC

FEDERAL TRADE COMMISSION | OFFICE OF THE SECRETARY | FILED 05/23/2023 OSCAR NO. 607741 -PAGE Page 32 of 137 * PUBLIC * 

situations covered by free TurboTax SKUs. PFF ¶379. A screenshot of the pop-up from Tax 

Year 2021 appears below. PFF ¶380. 

2. When consumers take steps to start preparing their tax return using TurboTax, 

such as by clicking on the File for $0 button on the TurboTax homepage, they are directed to 

the Products & Pricing page. PFF ¶408. All new consumers are shown this page before they can 

start preparing their taxes with TurboTax. PFF ¶409. The page provides details about each 

TurboTax product, including the price of each and relevant qualifying language. PFF ¶¶411-

415. 

23 
 

PUBLIC

FEDERAL TRADE COMMISSION | OFFICE OF THE SECRETARY | FILED 05/23/2023 OSCAR NO. 607741 -PAGE Page 33 of 137 * PUBLIC * 

The top of the Products & Pricing page includes a SKU selector tool, which enables

consumers to receive a recommendation for the SKU most likely suited to their tax situation. 

PFF ¶¶419-420. Consumers operate the SKU selector by clicking all the tiles that apply to their

tax situation. PFF ¶¶424-425. Based on the tiles chosen, the selector presents the consumer with 

the best SKU for his or her tax situation. PFF ¶¶424-425. 

Below is a screenshot from the SKU selector for Tax Year 2022:

PFF ¶421. 

Only after consumers select a SKU do they begin preparing their taxes by entering 

personal and financial information. PFF ¶442. If at any point a customer provides information 

indicating that she does not qualify for the SKU being used, a large screen appears alerting the

consumer. PFF ¶444. The screen also offers the consumer the opportunity to switch to the least

expensive SKU for which she qualifies. PFF ¶444. In Tax Year 2021, only 14% of TurboTax 

customers encountered such a screen. PFF ¶447. And those screens were almost always seen 

quickly: Customers who encounter an upgrade screen typically do so in much less than the 28 

minutes that it takes the average user of TurboTax Free Edition to complete her return. PFF

¶¶449-450. 

24 
 

 

PUBLIC

FEDERAL TRADE COMMISSION | OFFICE OF THE SECRETARY | FILED 05/23/2023 OSCAR NO. 607741 -PAGE Page 34 of 137 * PUBLIC * 

G. The Settlement Agreement And Consent Order

On May 4, 2022, Intuit executed a consent order with the attorneys general of all 50 

states and the District of Columbia (Consent Order). PFF ¶¶805-806. The Consent Order

resolved potential claims relating to Intuits marketing of its free online tax-preparation products. 

PFF ¶805. Intuit did not (and does not) concede any liability or wrongdoing as part of the order. 

PFF ¶807. The Consent Order is captured in a June 25, 2022, final judgment and permanent

injunction issued by a California state court (in Los Angeles County Superior Court case number

19STCV15644), as well as in various other documents filed with courts and regulators in other

states, pursuant to those states laws. PFF ¶806. 

The Consent Order includes multiple injunctive provisions. PFF ¶809. For instance, it

prohibits Intuit from running the so-called Free, Free, Free video advertisements or any 

substantially similar ones. PFF ¶810. It also provides that going forward, all ads for TurboTax 

free products must clearly and conspicuously disclose that there are eligibility requirements and 

that not all taxpayers qualify. PFF ¶¶812-814. These binding provisions, effective since August

2022, ensure that Intuits advertising of its free SKUs makes all relevant and necessary 

disclosures in a clear and conspicuous fashion. PFF ¶¶811-814, 818-819. The Consent Order

also includes several compliance-related provisions to ensure that Intuit is adhering to its terms. 

PFF ¶820. 

Since the Consent Order took effect, Intuit has fully complied with it. PFF ¶¶821, 823. 

For example, Intuit has not run any Free, Free, Free video advertisements, nor any other video 

ads that repeat the word free. PFF ¶824. Moreover, Intuit has disclaimed any intention to run 

such ads in the future. PFF ¶824. Intuit has also created a team responsible for ensuring that its

marketing and advertising complies with the Consent Order. PFF ¶821. And it has prioritized 

providing clear and comprehensive training on the Consent Orders provisions to all Intuit

25 
 

 

 

PUBLIC

FEDERAL TRADE COMMISSION | OFFICE OF THE SECRETARY | FILED 05/23/2023 OSCAR NO. 607741 -PAGE Page 35 of 137 * PUBLIC * 

employees in marketing roles or leadership roles, including any new marketing-team members. 

PFF ¶822. 

H. Procedural History 

1. Pre-hearing proceedings

The FTC began investigating Intuits marketing practices in May 2019. PFF ¶1. The

commissioners voted to issue an administrative complaint against Intuit on March 28, 2022. PFF

¶9. The complaint raised one count of deceptive advertising under section 5(a) of the Federal

Trade Commission Act, 15 U.S.C. §45(a). PFF ¶10. 

The FTC also filed a complaint and sought a temporary restraining order and a

preliminary injunction in the United States District Court for the Northern District of California. 

PFF ¶12. After briefing and a hearing, which occurred before Intuit had a chance to conduct any 

discovery and at which Complaint Counsel presented much of the same evidence introduced in 

this proceeding, the preliminary-injunction motion was denied. PFF ¶16; see PFF ¶18. At the

hearing, the court expressed skepticism about Complaints Counsels theory of liability. For

example, it observed that Free Edition ads dont say it is free to everybody and nobody thinks it

is free to everybody. PFF ¶15. When viewing a particular ad as an example, moreover, the

court observed that the disclosures are right under the word free, free, free or zero, zero, 

zero, it says TurboTax free edition, for simple tax returns only. PFF ¶15. Similarly, the court

noted that the exemplary ad tells me that it is limited to simple tax returns, and says

TurboTax free edition, for simple tax returns only[.] Thats what it is. PFF ¶15. 

On August 22, Complaint Counsel moved for summary decision on the administrative

complaint. PFF ¶21. The Commission denied that motion on January 31, 2023, stating that

Intuits marketing should be evaluated after a complete factual record was developed at trial. 

26 
 

 

PUBLIC

FEDERAL TRADE COMMISSION | OFFICE OF THE SECRETARY | FILED 05/23/2023 OSCAR NO. 607741 -PAGE Page 36 of 137 * PUBLIC * 

Op. and Order Denying Summ. Decision at 2 (Jan. 31, 2023). The commissioners also reserved 

decision on several of Intuits arguments about the appropriate remedy. Id. at 18. 

2. The trial

a. Complaint Counsels case-in-chief

At trial, Complaint Counsel presented three witnesses for its case-in-chief. The first was

Diana Shiller, a former H&R Block employee who had previously filed her taxes for free with 

TurboTax. PFF ¶¶912-913. Though styled as an FTC investigator, her primary role in this

case was to collect public TurboTax ads that were sent to her by others or that she obtained by 

posing as a TurboTax customer who qualified to file for free (and who, as a result, received 

emails touting Free Edition). PFF ¶¶198, 913. Her testimony at trial was limited to (1) serving 

as a vehicle to re-show advertisements the Court had previously seen and (2) attempting to 

authenticate consumer complaints that needed no authentication because they were already in 

evidence. PFF ¶914. 

On cross-examination, Ms. Shiller admitted to not reviewing most of the complaints that

her sworn declaration had represented were about free TurboTax. PFF ¶917. She also 

admitted that she did not even seek to verify most of the complaints at issue. PFF ¶918. And 

she repeatedly acknowledged that the TurboTax ads discussed in her declaration consistently 

included both written and voiceover disclosures identifying the specific TurboTax product or

offer that was being advertised (such as TurboTax Free Edition), disclosing that the product or

offer was available only for consumers with simple tax returns, and instructing consumers to 

visit the TurboTax website for more information. PFF ¶306. As just one example, Ms. Shiller

read aloud to the Court a 20-second video ad that ran in Tax Year 2021, an ad that contained a

voiceover stating both that anyone with a simple tax return can get help from an expert for free

27 
 

 

 

 

 

 

 

PUBLIC

FEDERAL TRADE COMMISSION | OFFICE OF THE SECRETARY | FILED 05/23/2023 OSCAR NO. 607741 -PAGE Page 37 of 137 * PUBLIC * 

and that [f]or a limited time TurboTax is free for simple returns no matter how you file. PFF

¶306. 

Ms. Shillers cross-examination also included her characterizing a search result for the

IRS Free File program as not deceptive. In particular, she was shown a screenshot containing 

online search results for free file taxes ONLINE. PFF ¶278. One of the results listed on that

screenshot was a snippet of an IRS website that said [w]elcome to Free File, where you can 

prepare and file your federal individual income tax return for free. PFF ¶278. The IRS Free

File program is a program that allows taxpayers with adjusted gross income below a certain level

to file their taxes for free. PFF ¶59. Ms. Shiller was asked if the snippet just quoted, which 

provided no information about the qualifications to participate in the program, was deceptive, to 

which she responded I dont know. PFF ¶278. She then suggested the snippet may not have

been deceptive because it says you can file your taxes for free by going to the website, and I do 

believe taxpayers can file their taxes for free going through the Free File Program. PFF ¶278. 

When Ms. Shiller was reminded that taxpayers can file for free going to the TurboTax website,

she noted that was true for only [s]ome taxpayers, but then acknowledged that only some

taxpayers can file for free if they go to IRS.gov, and that the snippet did not include that

limitation. PFF ¶278. 

Complaint Counsel next called Megan Baburek, an FTC data analyst who summarized 

dissemination data for online and television advertising for TurboTax Free Edition. PFF ¶¶919-

920. Like Ms. Shiller, Ms. Babureks testimony was limited to a technical issue: how she

summarized the dissemination data. PFF ¶920. She testified that the challenged ads ran 

frequentlyan undisputed factbut she admitted on cross-examination that she did not have

personal knowledge of how TurboTax ads were placed. PFF ¶¶922-923. She also admitted that

28 
 

PUBLIC

FEDERAL TRADE COMMISSION | OFFICE OF THE SECRETARY | FILED 05/23/2023 OSCAR NO. 607741 -PAGE Page 38 of 137 * PUBLIC * 

she was unaware of the text that would be included in the version of the ads viewed by 

consumers. PFF ¶924. This text would frequently contain the terms of the free offer being 

advertised. PFF ¶924. Finally, Ms. Baburek acknowledged that TurboTax ads included 

qualifications limiting free offers and products to simple tax returns only. PFF ¶307. 

The third and final witness of Complaint Counsels case-in-chief was Nathan Novemsky. 

He testified about his March 2022 study purporting to show that TurboTax advertising or the

TurboTax website has caused some consumers who do not qualify for TurboTax Free Edition to 

erroneously believe that they do. PFF ¶528. On cross-examination, Professor Novemsky 

admitted that he did not show any of the participants in his survey either any of the challenged 

ads or the TurboTax website. PFF ¶534. And he did not do so even though he himself went to 

the TurboTax website to determine the qualifications for Free Edition when designing his survey. 

PFF ¶534. He also admitted that, because he did not show his survey participants any of the

challenged ads or the TurboTax website, the participants would have had to answer the questions

based on memoryeven though [m]emory is not perfect, and the participants could have

forgotten anything. PFF ¶536. Professor Novemsky acknowledged as well that that he did not

use a test-and-control experiment in drawing his conclusion that TurboTaxs marketing had 

caused consumer misimpression, PFF ¶533, even though he had testified in a prior falseadvertising case that drawing any reliable causal inference is impossible without a test-andcontrol design. PFF ¶532. And Professor Novemsky testified that the results from his main 

survey group somehow showed that Intuit had deceived tens of millions of people into using 

TurboTax or visiting the TurboTax website, even though none of the respondents in that group 

had used TurboTax in the prior three years and it was possible that none of them had ever used

TurboTax. PFF ¶¶550, 608, 615. 

29 
 

 

 

 

PUBLIC

FEDERAL TRADE COMMISSION | OFFICE OF THE SECRETARY | FILED 05/23/2023 OSCAR NO. 607741 -PAGE Page 39 of 137 * PUBLIC * 

Complaint Counsel presented no evidence in their case-in-chief to support their expressclaims theory, presented no extrinsic evidence to support their theory of implied claims, and 

offered only Mr. Novemskys perception study as proof of deception. No evidence at all was

offered either on materiality or on the efficacy of or need for the cease-and-desist order

Complaint Counsel seek. 

b. Intuits case-in-chief

Intuit offered live testimony from six witnessesthree current or former Intuit executives

and three experts. Intuit also offered testimony of a fourth expert through trial deposition. The

fact witnesses covered a wide variety of topics, including the values of the company, the strategy 

and goals behind Intuits free offers, the metrics Intuit uses to determine whether those goals are

being met, the rigorous process any advertisement must go through before the ad gets run, the

absence of data suggesting deception (and the existence of data suggesting no deception), the

overall incentives that guide Intuits advertising and the imperative that it not deceive consumers, 

and Intuits compliance with the Consent Order. The four experts, meanwhile, presented 

scientific evidence explaining how Complaint Counsels theories of deception were inconsistent

with the evidence. They also touched on topicssuch as the understandings and cognitive

approaches of reasonable consumersthat helped contextualize Complaint Counsels theory of

deception and the harmful consequences that would result from Complaint Counsels proposed 

remedy. 

Intuits first witness was Greg Johnson, an Air Force veteran who from 2018 to 2022 

served as General Manager of Intuits Consumer Group, which is akin to being the CEO of the

TurboTax business. PFF ¶¶848, 850. Mr. Johnson testified that Intuits values, which include

integrity without compromise, drive the companys culture and decisionmaking, including 

regarding the challenged ads. PFF ¶¶33-36, 850. He also explained that Intuit offers free tax30 
 

 

 

 

PUBLIC

FEDERAL TRADE COMMISSION | OFFICE OF THE SECRETARY | FILED 05/23/2023 OSCAR NO. 607741 -PAGE Page 40 of 137 * PUBLIC * 

preparation services in the hope that customers with simple tax returns will file for free with 

TurboTax and have a positive experience doing so, and that those customers will choose to use

one of TurboTaxs paid offerings if their taxes become more complex in the future. PFF ¶83. 

Because of this strategic focus on long-term relationships with customers, Intuit places particular

importance on metrics that measure whether consumers experience with TurboTax meets their

expectations. PFF ¶652. And consistent with wanting to ensure positive customer experiences, 

Mr. Johnson testified that Intuit designed the TurboTax website to make sure that [consumers]

are aware of the qualifications and to make sure we  get consumers in the right products.

PFF ¶413. Finally, Mr. Johnson detailed how a deceptive marketing campaign like the one

alleged by Complaint Counsel would undermine Intuits business strategy, including the

retention of customers year after year. PFF ¶¶94-96. 

Cathleen Ryan, the current Senior Vice President of Marketing at Intuit who oversees

TurboTaxs advertising, testified next. PFF ¶857. She walked the Court through the various

channels in which Intuit advertises its TurboTax online products, and explained that Intuit targets

its advertising for TurboTax Free Edition at individuals likely to have simple tax returns. PFF

¶¶179-186, 860. Ms. Ryan also explained that Intuit uses the phrase simple tax returns to 

describe the products eligibility because it aligns with how the IRS and Intuits competitors use

it. PFF ¶¶122-123, 141. She testified as well that the ads Intuit has run since the Consent Order

comply with the orders provisions, and that Intuit fully intends to abide by those provisions

going forward. PFF ¶¶823, 825, 864. And she emphasized that Intuit would absolutely not

deliberately air any deceptive or misleading advertisement. PFF ¶169. 

Intuits final fact witness was Jack Rubin, an Intuit Vice President in the Consumer

Group. PFF ¶866. Mr. Rubin explained that Intuit advertises its free products to qualifying 

31 
 

 

 

PUBLIC

FEDERAL TRADE COMMISSION | OFFICE OF THE SECRETARY | FILED 05/23/2023 OSCAR NO. 607741 -PAGE Page 41 of 137 * PUBLIC * 

consumers so that they will file for free; that Intuit would not have run any advertisements that it

believed were deceptive; that engaging in the deception alleged would have been disastrous for

TurboTaxs business, threatening its very existence; and that Intuit has taken several steps to 

ensure its compliance with the Consent Order moving forward. PFF ¶¶95, 134, 162, 174, 191, 

647, 769, 821-822, 870, 872, 875. He also testified about how Intuit has designed the TurboTax 

website to ensure that consumers are made aware as soon as possible of terms of any free offers, 

and the importance of getting consumers to the right SKU as early as possible (and ideally from

the outset). PFF ¶¶73, 365, 413, 871-872. 

Intuit also offered testimony from four experts. The first was Professor John Hauser, the

Kirin Professor of Marketing at the MIT Sloan School of Management. PFF ¶878. He explained 

that a double-blind, randomized test-control experiment he conducted (the Disclosure Efficacy 

Survey) provided strong evidence that the challenged ads were not deceptive. PFF ¶¶722-745, 

882. Contrary to what would be expected if the ads were deceptive, he testified, the survey 

showed that incorporating 13 changes sought by Complaint Counsel to TurboTax Free Edition 

advertising did not affect the likelihood that a consumer would use the product. PFF ¶¶722-745, 

882. Dr. Hauser also explained how an internal copy test Intuit conducted in Tax Year 2020 did 

not indicate that Intuits ads were deceptive. PFF ¶¶694-696, 700-701, 883. He also opined that

numerous flaws in Professor Novemskys survey rendered it scientifically invalid and unreliable. 

PFF ¶¶530-531, 535, 539-540, 545-622, 884. 

Peter Golder, a professor of marketing at Dartmouth Colleges Tuck School of Business

was Intuits next expert witness. PFF ¶886. He testified about reasonable consumers in the taxpreparation industry and the high-involvement buying process that consumers engage in when 

selecting a tax-preparation product. PFF ¶¶502-506, 510-527, 891. Professor Golder explained 

32 
 

 

 

PUBLIC

FEDERAL TRADE COMMISSION | OFFICE OF THE SECRETARY | FILED 05/23/2023 OSCAR NO. 607741 -PAGE Page 42 of 137 * PUBLIC * 

that reasonable consumers understand that free offers often come with qualifications or

limitations, even if those limitations are not expressly stated, and thus that reasonable consumers

understood that free TurboTax offers were qualified, even if they did not see the qualifications. 

PFF ¶¶487, 493, 890. 

Professor Golder also testified about two analyses he performed comparing Intuit to 18 

benchmark companies across two different dimensions. The first dimension was how well

Intuits and the benchmark companies television and social-media advertisements satisfied six 

components of the FTCs .com Disclosures Guidelines for online advertising disclosure;

Professor Golder found that Intuits disclosures were comparable or superior to those of the

benchmark companies. PFF ¶¶229, 232, 234-241, 258-259, 894. The second dimension was

Intuits and the benchmark companies complaint rate on the Better Business Bureau (BBB)

website; Professor Golder found that Intuits rate was significantly lower. PFF ¶¶638-640, 896. 

Finally, Professor Golder explained how the disclosures Complaint Counsel demand be included 

in Intuits ads would lead to less consumer engagement with the ads (and the relevant

qualifications), decreased consumer awareness of free tax-filing options, and fewer consumers

who qualify to file for free actually doing so, i.e., more consumers unnecessarily paying to file. 

PFF ¶¶830, 834-835, 838-840, 842-845, 847. 

Intuits next expert was Bruce Deal, an economist who testified that structural features of

the tax-preparation market, such as the stable customer base and repeat interactions between 

customers and providers, provide a strong disincentive for Intuit to pursue a business strategy 

based on deceiving customers. PFF ¶¶41, 44-46, 51-52, 88, 95, 898, 901. He also testified that

Intuits customer data for Tax Year 2021 showed that only a miniscule percentage of Intuits

33 
 

 

PUBLIC

FEDERAL TRADE COMMISSION | OFFICE OF THE SECRETARY | FILED 05/23/2023 OSCAR NO. 607741 -PAGE Page 43 of 137 * PUBLIC * 

customer base could possibly have been deceived in the manner Complaint Counsel allege. PFF

¶¶663-682, 899, 902. 

Lastly, Rebecca Kirk Fair, an economist and expert in survey design and evaluation, 

testified via trial deposition about a survey she conducted showing that reasonable consumers

were aware of tax-filing alternatives, knew how to locate them, and relied on factors other than 

price (including brand name, product quality, and their tax situation) in choosing a taxpreparation product. PFF ¶¶758-759, 904. She also testified that her survey demonstrated that

reasonable consumers were not likely deceived by the challenged ads, because even after

receiving more information about free tax-filing alternatives, the same proportion of respondents

chose to start filing with TurboTax. PFF ¶¶747-757, 909. 

c. Complaint Counsels rebuttal case

In rebuttal, Complaint Counsel called two expert witnesses, each of whom responded to 

particular experts of Intuits. 

The first rebuttal witness was Erez Yoeli, who responded to Mr. Deals testimony. PFF

¶929. Mr. Yoelis direct testimony largely consisted of offering hypotheticals about Mr. Deals

analysis. PFF ¶930. On cross-examination, he conceded that consumers are unlikely to use

TurboTax again if they believe they have been deceived. PFF ¶930. He also admitted that he

did not take independent steps to understand the underlying data relied on by Mr. Deal before

forming his opinions, and that he had not reviewed many of the materials that Mr. Deal had 

relied on. PFF ¶930. Finally, Mr. Yoeli conceded that the rate of complaints made against

TurboTax was so low that he could not keep track of the zeros. PFF ¶645. 

Complaint Counsel concluded with Professor Novemsky, who responded to three of

Intuits expert witnesses. PFF ¶927. On cross-examination, Professor Novemsky conceded that

the metrics Professor Golder used for his ad benchmarking analysis were based on the FTCs

34 
 

 

 

PUBLIC

FEDERAL TRADE COMMISSION | OFFICE OF THE SECRETARY | FILED 05/23/2023 OSCAR NO. 607741 -PAGE Page 44 of 137 * PUBLIC * 

own .com Disclosure Guidelines. PFF ¶927. Professor Novemsky also agreed with Professor

Golder that lengthy disclosures in short-form television and social-media advertisements are

impractical and counterproductive. PFF ¶523. And although Professor Novemsky criticized Dr. 

Hausers survey as flawed because it could not eliminate the possibility that both the original and 

revised ads were equally deceptive, he admitted that his survey did not test consumer

understanding of any of the ads or disclosures in Dr. Hausers survey. PFF ¶928. Instead, 

Professor Novemsky testified, his survey measured the impact of [e]verything that was in the

marketplace up until the time [of the] surveynot just the impact of TurboTax marketing. PFF

¶538. Professor Novemsky did not control for everything.

ARGUMENT

Complaint Counsel failed to meet their burden of proving that all (or any) of the

challenged advertisements was deceptive. Moreover, the record is crystal clear that no ceaseand-desist order is warranted and certainly not the overbroad and unprecedented order Complaint

Counsel seek. 

A practice is deceptive in violation of § 5(a) [of the FTC Act] only if: (1) there is a

representation, omission, or practice; (2) that is likely to mislead consumers acting reasonably 

under the circumstances; and (3) the representation, omission, or practice is material. FTC v. 

DirecTV, Inc., 2018 WL 3911196, at *5 (N.D. Cal. Aug. 16, 2018) (quotation marks omitted). 

Complaint Counsel have the burden to prove each element by a preponderance of the

evidence. Telebrands Corp., 140 F.T.C. 278, 426 (2005). Actionable representations can be

made through either express or implied claims. Fanning v. FTC, 821 F.3d 164, 170 (1st Cir. 

2016). A claim is express when the ad directly state[s] the representation at issue.

Thompson Medical Co., 104 F.T.C. 648, 788 (1984). Implied claims are ones that, although not

35 
 

 

 

 

PUBLIC

FEDERAL TRADE COMMISSION | OFFICE OF THE SECRETARY | FILED 05/23/2023 OSCAR NO. 607741 -PAGE Page 45 of 137 * PUBLIC * 

directly stated, are nevertheless conveyed by the overall net impression of an advertisement. 

Fanning, 821 F.3d at 171. 

Complaint Counsel do not discharge that burden by sharing with the Court their opinion 

that the challenged ads are deceptive. Instead, to prevail by a preponderance of the evidence,

Complaint Counsel needed to come forward with competent evidence. Telebrands, 140 F.T.C. at

425-426. If in fact the ads were deceptive, evidence of that deception should not have been 

difficult to come by. The challenged ads ran frequently, across multiple formats, for many years. 

And yet it is largely undisputed that no such evidence of deception exists. Instead, Complaint

Counsels case focuses on excuses for why there is no evidence of deception. Not only are these

excuses not persuasive, but they also do not suffice to carry Complaint Counsels burden. 

Ultimately, Complaint Counsel failed to prove each element, offering only the (facially 

non-deceptive) ads themselves, a fatally flawed survey, and a miniscule number of complaints.

Complaint Counsel also failed to prove that prospective relief is warranted. And although Intuit

had no burden here, it offered a plethora of evidenceincluding unrebutted testimony from

Intuit executives and reliable expert and survey evidencethat the challenged ads did not make

any false or misleading claim, that in fact no significant minority of reasonable consumers was

deceived, and that the Consent Order eliminates any sound basis for prospective relief here.

Finally, even apart from Complaint Counsels failures of proof, a host of threshold legal

issuesincluding mootness, the statute of limitations, laches, and a variety of constitutional

infirmities in these proceedingseach independently bars relief. 

I. COMPLAINT COUNSEL FAILED TO MEET THEIR BURDEN TO PROVE THAT THE

CHALLENGED ADS CONVEYED ANY OF THE CLAIMS THEY ALLEGE

Complaint Counsel have not established that any of the challenged ads expressly or

implicitly conveyed any of the deceptive claims Complaint Counsel allege. 

36 
 

 

 

 

 

 

 

 

PUBLIC

FEDERAL TRADE COMMISSION | OFFICE OF THE SECRETARY | FILED 05/23/2023 OSCAR NO. 607741 -PAGE Page 46 of 137 * PUBLIC * 

Complaint Counsel have focused almost exclusively on their alleged claims were

conveyed by challenged video ads, all but ignoring the 108 challenged display ads, 17 challenged 

paid-search ads, 24 challenged email ads, and 4 challenged radio ads. PFF ¶207. In other words, 

Complaint Counsel did not address how most of the challenged ads could have conveyed the

claims they allege. That omission was particularly notable given that the Commissions order

denying summary decisionwhich acknowledged (at 8) that it too focused heavily on [Intuits]

video adsspecifically called for the analysis of [the] other, equally important ads [to] be

further developed during the course of trial. Complaint Counsel wholly failed to develop[]

the analysis of the challenged non-video ads during the course of trial, offering next to no 

analysis of those equally important ads, id.

In any event, the evidence does not satisfy Complaint Counsels burden, see 16 C.F.R.

§3.43(a), to prove that any of the challenged ads conveyed any of the alleged claims, either

expressly or implicitly. And although Intuit has no burden to prove the absence of the alleged 

claims, see id., the evidence confirms that the ads did not convey any of them. Instead, the ads

conveyed the critical information: that the free offers being advertised were qualified, those

qualifications were tied to the complexity of your tax return, additional information was

available on the TurboTax website, and the free offers were limited to the specific product

named. 

A. The Challenged Ads Made None Of The Express Claims Complaint Counsel

Allege

Complaint Counsel have not proven that any challenged ad expressly stated any of the

claims Complaint Counsel allege. In fact, it is not even close. Again, [e]xpress claims are ones

that directly state the representation at issue. Thompson, 104 F.T.C. at 788. There is no

evidence that any challenged ad directly stated that TurboTax is free, that TurboTax is free

37 
 

 

 

 

 

 

 

PUBLIC

FEDERAL TRADE COMMISSION | OFFICE OF THE SECRETARY | FILED 05/23/2023 OSCAR NO. 607741 -PAGE Page 47 of 137 * PUBLIC * 

for me, or any of the other express claims Complaint Counsel have alleged. As Complaint

Counsels first witness, FTC investigator Diana Shiller, confirmed (expressly, as it happens), the

challenged ads did not say all TurboTax products are free or that everyone can file for free

using TurboTax Free Edition. PFF ¶306. 

By failing to present any evidence that the challenged ads expressly claimed what

Complaint Counsel allege, and instead conceding (as discussed below, see p.39) that the ads did 

not expressly make those claims, Complaint Counsel in effect abandoned their express-claim

theory. Yet Complaint Counsel still insisted on the last day of trial that this is an express claim

case. PFF ¶206. The trial record shows otherwise, but to the extent Complaint Counsel

continue to push this theory, it clearly fails. 

The only evidence Complaint Counsel have for their express-claim theory is the

repetition of the word free in some of the challenged video ads, which Complaint Counsel say 

constitutes an express claim that all consumers viewing those ads can necessarily file their taxes

for free using TurboTax. PFF ¶219. That is borderline frivolous. As an initial matter, this

repetition is missing from the vast majority (more than two-thirds) of the challenged ads, 

including most challenged display ads and all paid search and email ads. PFF ¶220. That aside, 

the word free by itself, even when repeated, is not a claim about TurboTax at all. PFF ¶221. 

The Commissions designee admitted this, explaining in his deposition that the word free is

not an express claim about anything because its meaning depends [on] whether there is any 

other context for the person that is hearing it. PFF ¶221. The other context provided by the

challenged ads (PFF ¶221) was that a specific TurboTax SKU was free, that the SKU was

available for simple tax returns only, and that further details were available on the TurboTax 

website. PFF ¶222. Indeed, the challenged ads did not state anything about TurboTax without

38 
 

 

 

 

 

PUBLIC

FEDERAL TRADE COMMISSION | OFFICE OF THE SECRETARY | FILED 05/23/2023 OSCAR NO. 607741 -PAGE Page 48 of 137 * PUBLIC * 

supplying that context. PFF ¶223. As Ms. Shiller testified, for instance, the challenged Free, 

Free, Free ads first made viewers aware that the ads were for TurboTax only when a voiceover

stated TurboTax Free Edition is free and invited viewers to see details at TurboTax.com.

PFF ¶223 (emphasis added). Intuit copy testing confirmed that consumers did not associate the

Free, Free, Free ads with TurboTax until Free Edition was mentioned. PFF ¶224. 

Complaint Counsels failure of proof is reinforced by their concessions before trial. For

example, they conceded that Intuits Free Edition advertisements do not expressly contain the

phrase all consumers can file their taxes for free with TurboTax. PFF ¶303. They were also 

unable to identify a single advertisement saying TurboTax is free. PFF ¶305. Even Appendix 

B to their pretrial brief, which lists the express claims purportedly made by each challenged 

advertisement, identifies no ad expressly stating that TurboTax is free or any of the other

claims Complaint Counsel have alleged. PFF ¶304. The Court saw no shortage of ads at trial, so 

it no doubt saw for itself that none of the challenged ads expressly made any of the claims

Complaint Counsel allege. 

Because Complaint Counsel failed to offer evidence that any challenged ad directly stated 

any of the claims Complaint Counsel allege were conveyed, and in fact Complaint Counsel

conceded the opposite, their express-claim theory must be rejected. 

B. The Challenged Ads Did Not Imply Any Of The Claims Complaint Counsel

Allege

Complaint Counsel also have not proven that any of the challenged ads implied that

TurboTax is free, that TurboTax is free for them, or any other claim suggesting that all

TurboTax products are free or that any TurboTax product was free to consumers not eligible to 

use it. See PFF ¶206. 

39 
 

 

 

 

 

 

 

 

PUBLIC

FEDERAL TRADE COMMISSION | OFFICE OF THE SECRETARY | FILED 05/23/2023 OSCAR NO. 607741 -PAGE Page 49 of 137 * PUBLIC * 

An advertisement will only be found to contain implied claims where the language or

depictions are clear enough to permit [a court] to conclude with confidence, after examining the

interaction of all of the constituent elements, that they convey a particular implied claim to 

consumers acting reasonably under the circumstances. Telebrands, 140 F.T.C. at 429 

(quotation marks omitted). Accordingly, if, based on initial review of the evidence from the

advertisement itself, [the court] cannot conclude with confidence that an advertisement can 

reasonably be read to contain a particular implied message, [the court] will not find the ad to 

have made the claim unless extrinsic evidence allows [it] to conclude that such a reading of the

ad is reasonable. Id. Applying these standards, the challenged ads make no deceptive claim

implicitly. To the contrary, the interaction of all the constituent elements in the challenged 

ads, id., makes plain that Intuits free offers are not unqualified. 

1. The challenged ads conveyed that there were qualifications to use the

SKU advertised 

Complaint Counsels implied-claim theory impermissibly relies on disputatious

dissection of the ads, S.C. Johnson & Son, Inc. v. Clorox Co., 241 F.3d 232, 238 (2d Cir. 2001), 

rather than on (as the law requires) the overall net impression left by the ads, Fanning, 821 

F.3d at 171. In discerning implied claims from an ads net impression, courts must consider

the entire document, including the juxtaposition of various phrases in the document. FTC

Policy Statement on Deception, 103 F.T.C. 174, 176 & n.7 (1984), appended to Cliffdale

Associates, Inc., 103 F.T.C. 110 (1984). In contravention of that rule, Complaint Counsel ignore

various phrases that are clear and conspicuous in every ad. For example, when asked to 

confirm that the phrase see if you qualify at turbotax.com was included in one ad, Complaint

Counsels expert replied If you say so and I dont recall. PFF ¶208. But it is not Intuits

counsel that say so. The challenged video ads indisputably included that exact phrase (or the

40 
 

 

 

PUBLIC

FEDERAL TRADE COMMISSION | OFFICE OF THE SECRETARY | FILED 05/23/2023 OSCAR NO. 607741 -PAGE Page 50 of 137 * PUBLIC * 

similar see details) and more, which made clear that the free product or offer being advertised 

was qualified. 

a. Contrary to Complaint Counsels assertion that the challenged ads implied that all

TurboTax products were free (or some variation on that claim), all of the challenged video, 

display, search, email, and radio ads contained qualifications in writing, voiceover, or both 

showing that the offer being advertised was not for all TurboTax or for all consumers. See PFF

¶¶215-218, 248-251, 266-268, 281, 294. In fact, as elaborated in the paragraphs that follow, 

many of the ads (including all of the video ads) had multiple qualifications, such as stating (1)

that the ad was for a specific TurboTax SKU, (2) that consumers ability to use the SKU was

qualified, and (3) that there was additional information about the SKU and its qualifications on 

the TurboTax website. PFF ¶¶244, 262, 275, 290, 299. Taken together (as they must be), the

disclosures left an unmistakable impression that TurboTax was advertising a free product with 

specific qualifications.

First, most of the challenged ads clearly conveyed that they were for a specific, identified 

product or offerTurboTax Free Edition, Absolute Zero, or TurboTax Live Basicnot for

every product in the TurboTax product line (or for TurboTax as a whole in any other sense). See

PFF ¶¶215, 250, 266, 281-282, 294. Ms. Shiller conceded this at trial. PFF ¶317. The ads

inclusion of the product name alone was sufficient to prevent reasonable consumers from

misunderstanding that all TurboTax products were free. See PFF ¶319. 

Second, the challenged ads included language conveying that not all consumers would 

qualify for the free TurboTax product. Most of the ads, for example, specified that the free offer

was for simple tax returns only (and/or, before the 2017 change to the tax laws, Forms

1040EZ/1040A). PFF ¶¶215-127, 248-249, 252, 267-268, 281-282, 294. Indeed, as the Court

41 
 

 

 

 

 

 

 

PUBLIC

FEDERAL TRADE COMMISSION | OFFICE OF THE SECRETARY | FILED 05/23/2023 OSCAR NO. 607741 -PAGE Page 51 of 137 * PUBLIC * 

heard during Ms. Babureks testimony, it was impossible to ignore those disclosures, which were

the first words spoken in many of the ads. See PFF ¶252. And while Complaint Counsel have

argued that reasonable consumers did not understand the precise meaning of simple tax 

returns, see PFF ¶130, that is both wrong, see infra pp.65-66, and irrelevant. It is irrelevant

because even if some reasonable consumers were unsure precisely what counted as a simple tax 

return, the qualification that the advertised product was for simple tax returns only

unmistakably conveyed that there was some limitation, i.e., unmistakably did not convey that

TurboTax is free for everyone, or any of the other similar claims Complaint Counsel have

alleged. Given the ads clear explication that not all tax returns were covered by the free SKU

being advertised, no reasonable consumer would take away from any of the challenged ads that

Intuits offer was unqualified. As Professor Golder put it, both simple and only mean (at the

very least) not all. PFF ¶135. 

Complaint Counsel have also carped that the challenged ads disclosures did not fully 

detail the qualifications of Intuits free offers. PFF ¶137. But courts routinely approve

disclosures like Intuits (in fact, disclosures far inferior). One court, for example, held that a

disclosure that a fast-food promotion was available [a]t participating locations for a limited 

time and that [p]rices may vary was consistent with the norm of reasonable business

practice in television advertising and sufficient to put reasonable consumers on notice of the

promotions restrictions, even though the disclosure did not specify the participating locations, 

the limited time, or the range of prices. Estrella-Rosales v. Taco Bell Corp., 2020 WL 1685617, 

at *2 (D.N.J. Apr. 7, 2020); see also DirecTV, 2018 WL 3911196, at *15 (reasonable consumers

understand the limitations of how information is presented in a space-constrained ad for a

complex product like tax-preparation software). Another court likewise approved a disclosure

42 
 

 

 

 

PUBLIC

FEDERAL TRADE COMMISSION | OFFICE OF THE SECRETARY | FILED 05/23/2023 OSCAR NO. 607741 -PAGE Page 52 of 137 * PUBLIC * 

that a particular price applied at participating stores, because that phrase told consumers that

not all franchises may follow the advertised price, even though it did not specify which

franchises did so. Little Caesars Enterprises, Inc. v. Smith, 895 F.Supp.884, 888, 899 (E.D. 

Mich. 1995) (emphasis added). Just so here: The phrase simple tax returns only conveyed that

not all tax returns were covered. 

Finally, many of the challenged adsincluding all of the challenged video ads

conveyed that consumers could find more information about the qualifications for free TurboTax 

products or offers atTurboTax.com, expressly inviting consumers to see if you qualify or see

details at the TurboTax website. PFF ¶¶215, 218, 294. And most of the ads that did not

expressly refer to the website were themselves hyperlinks that took consumers directly there. 

PFF ¶¶253, 269, 284. That disclosure, or the link to the website, served two purposes. The see

if you qualify language presents the existence of the disclosure by clearly informing 

consumers that there will be some restrictions, and that not every taxpayer will qualify for the

free offer. PFF ¶324. That prevented the challenged ad from implying that all TurboTax 

products were free or that TurboTax was necessarily free for all consumers. And by directing 

consumers to the TurboTax website, the ads incorporated the information on the website. PFF

¶¶254, 285, 370. That detailed information did not imply any of the claims that Complaint

Counsel allege. See supra §H; infra Part II.E. 

b. Complaint Counsel offered no evidence that the disclosure language could not be

seen (or heard) by reasonable consumers. PFF ¶¶230-231, 255-256, 271, 286, 295. To the

contrary, all of these qualifications were sufficiently legible (or audible) to ensure that

consumers would notice them, FTC Policy Statement on Deception, 103 F.T.C. at 180. PFF

¶¶232, 257, 272, 287, 296. And the evidence Complaint Counsel did offer only underscores the

43 
 

 

 

 

 

PUBLIC

FEDERAL TRADE COMMISSION | OFFICE OF THE SECRETARY | FILED 05/23/2023 OSCAR NO. 607741 -PAGE Page 53 of 137 * PUBLIC * 

qualifications sufficiency: Complaint Counsels witnesses repeatedly acknowledged that the

challenged ads contained visible and/or audible qualifying language, including a specific product

name; that the product was for simple tax returns only; and/or that consumers could see if they 

qualified at TurboTax.com. See PFF ¶¶223, 233, 306-307, 317. In fact, when the Court properly 

observed that the challenged ads contained prominent qualifying language like simple returns

only, PFF ¶208, Complaint Counsel agreed, stating that there is a []simple []tax returns only

qualifier in most, if not all of the challenged ads, PFF ¶308. To the extent Complaint Counsel

nonetheless maintain that the qualifications in the challenged ads were not visible, they offered 

no evidence to support that view, and thus have failed to carry their burden. 

Intuit, meanwhile (though having no burden, as noted), presented substantial evidence

that the qualifying language in the challenged ads was sufficiently prominent to be seen and 

heard by reasonable consumers. For example, Professor Golder compared Intuits video and 

social-media ads to the ads of 18 benchmark companies across four industries, using seven 

metrics drawn from the FTCs .com Disclosures guidelines on How to Make Effective

Disclosures in Digital Advertising: placement, height, color, duration, repetition, proximity in 

time to the claim being qualified, and the presence or absence of distracting factors. PFF ¶¶234-

236, 258. These metrics, in addition to coming from the FTCs own guidance, responded 

directly to Complaint Counsels criticisms of the ads and related to the relief sought in this

proceeding. See PFF ¶235. On every metric, TurboTax television ads were statistically 

comparable to the benchmark companies ads or better. PFF ¶¶237. Indeed, for two metrics

height and durationthe TurboTax ads disclosures were superior. PFF ¶237. TurboTax socialmedia ads were likewise in line with benchmark companies ads. PFF ¶259. Based on that

analysis, Professor Golder concluded that the qualifications in Intuits ads were (1) in line with 

44 
 

 

PUBLIC

FEDERAL TRADE COMMISSION | OFFICE OF THE SECRETARY | FILED 05/23/2023 OSCAR NO. 607741 -PAGE Page 54 of 137 * PUBLIC * 

FTC guidelines and (2) presented in the form and manner that consumers expect. PFF ¶¶238, 

259. Because Complaint Counsel did not rebut that evidence for either the television or social

media adsProfessor Novemsky scorned Professor Golders analysis but could not and did not

dispute it, PFF ¶927it establishes that the qualifications in the challenged ads were sufficiently 

conspicuous to be noticed by reasonable consumers. 

Professor Golders benchmarking analysis also belies the unsupported assertion in the

Commissions summary-decision order (at 11-12) that Intuits ads performed poorly on the

metrics in the FTCs guidelines. Even Professor Novemsky made no similar assertion, instead 

arguing that compliance with the FTCs guidelines does not necessarily mean an ad is not

deceptive. PFF ¶927. That opinion, of course, does not help Complaint Counsel, as it is their

burden to prove deception, not show merely that an ad was not necessarily not deceptive. 

Moreover, the qualifying language in the challenged ads meets or exceeds the standards

established by case law, further undermining the Commissions assertion. For example, 

disclosures have been held adequate even when the language appeared only in the closing 

seconds of the commercial, Estrella-Rosales, 2020 WL 1685617, at *2, or was smaller than 

most of the text in the advertisement, DirecTV, 2018 WL 3911196, at *8. 

Lastly, it bears emphasis that just the existence of noticeable qualificationsregardless of

whether consumers read or understood them (although they did, see infra pp.65-66)put

reasonable consumers on notice that the offer was qualified. PFF ¶¶239, 314. That alone is

enough to decide this case, because it means consumers viewing Intuits ads could not

reasonably have formed the net impression from the ads that they necessarily could file for free

using TurboTax regardless of their filing circumstances, and would need to go to the TurboTax 

website if they wanted additional details. 

45 
 

 

 

 

PUBLIC

FEDERAL TRADE COMMISSION | OFFICE OF THE SECRETARY | FILED 05/23/2023 OSCAR NO. 607741 -PAGE Page 55 of 137 * PUBLIC * 

2. Intuit never intended to imply that all TurboTax products are free or that

any given TurboTax product was free for those not eligible

Intuits intent not to imply to consumers who had more complicated tax returns that

they could file for free with TurboTax is powerful evidence of the claim that in fact was

conveyed to consumers. Telebrands, 140 F.T.C. at 304. The unrebutted evidence of that intent

further undermines Complaint Counsels assertion that the challenged ads implied any of the

claims allegedly conveyed. 

Every Intuit executive (current or former) who testified at trial explained that Intuits

intent in running the challenged ads was to convey that the free TurboTax product or offer was

available for qualifying consumers only. PFF ¶¶171, 852, 860, 870. For instance, Ms. Ryan, 

Intuits Senior Vice President of Marketing responsible for overseeing the development and 

distribution of the challenged ads, explained that Intuit developed the ads to target consumers

who qualified. PFF ¶¶192-198, 857. She further explained that the claim Intuit intended to 

convey to those consumers was that TurboTax offered a free product that was available to 

qualifying consumers. PFF ¶171. 

This credible testimony was reinforced by what Intuit was doing and saying outside the

litigation context, as shown in countless normal-course documents. For example, Intuit required 

the ad agencies that developed the ads to include the language TurboTax Free Edition is for

simple U.S. returns only and See if you qualify at turbotax.com in television ads. PFF ¶173. 

Intuit also directed the ad agencies to 

 in email ads. PFF ¶173. And Intuit told the agencies that the

. PFF ¶172. 

46 
 

 

PUBLIC

FEDERAL TRADE COMMISSION | OFFICE OF THE SECRETARY | FILED 05/23/2023 OSCAR NO. 607741 -PAGE Page 56 of 137 * PUBLIC * 

Intuits efforts to target its free TurboTax ads at qualifying consumers, and to show other

consumers ads for the product right for their tax situation, further undermines any intent to 

communicate a deceptive message. Ms. Ryan, for example, described Intuits efforts to ensure

that its advertisements would be relevant to their audience so that people  get started in the

[TurboTax] product thats right for them. PFF ¶190. And she described Intuits use of

exclusionary targeting, which Intuit uses to avoid showing free ads to those who are unlikely 

to qualify. PFF ¶197. Mr. Rubin, meanwhile, explained that Intuit designed its website using 

search engine optimization techniques to ensure that when consumers use search engines to 

find tax-preparation solutions for their particular circumstances, the right TurboTax SKU for the

consumers tax situation will appear near the top of the organic search results. PFF ¶¶199-202. 

For instance, if a consumer searches for TurboTax sold new investments, the consumer would 

see content for TurboTax Premier appearing in those search results. PFF ¶201. Free Edition, 

by contrast, would not feature highly in these search results because selling investments doesnt

fit on a simple tax return. PFF ¶201. Relatedly, Mr. Rubin explained that Intuit also uses

search-engine optimization techniques to ensure that specific webpages enumerating detailed 

information about which tax situations qualify for free offers appear prominently in search 

results for consumers who used search terms that suggested that they were looking for free tax 

preparation options. PFF ¶405. 

Ms. Ryan and every other Intuit executive to take the stand also stated unequivocally 

(and without contradiction) that Intuit would have immediately stopped running the ads if it

believed it was deceiving consumers in the manner alleged by Complaint Counsel (or otherwise). 

PFF ¶174. Ms. Ryan testified that if anyone at Intuit believed an ad was misleading, Intuit

would immediately address it and would [a]bsolutely not run the ad. PFF ¶¶168-169. Mr. 

47 
 

 

 

 

PUBLIC

FEDERAL TRADE COMMISSION | OFFICE OF THE SECRETARY | FILED 05/23/2023 OSCAR NO. 607741 -PAGE Page 57 of 137 * PUBLIC * 

Johnson similarly testified that if he believed a TurboTax ad was misleading consumers, we

would have stopped the ad. PFF ¶174. And Mr. Rubin testified that Intuit does a lot of work 

to be clear with [its] customers and wouldnt run any ad it had reason to believe was

deceptive. PFF ¶¶167, 169. Indeed, as explained further below, see Part IV.C, Intuit has always

been, and remains, committed to clarity in its free (and other) advertising. See, e.g., PFF ¶¶353-

363. 

This commitment to clarityand the Intuit business interests that reinforce ithighlight

that this case differs from virtually all other deceptive-advertising cases, which target companies

seeking to profit by deceiving their customers, Statement of Commissioner Rebecca Kelly

Slaughter Joined by Chair Lina Khan and Commissioner Alvaro M. Bedoya Regarding the

Issuance of a Notice of Penalty Offenses on Substantiation of Product Claims (Mar. 31, 2023), 

https://www.ftc.gov/system/files/ftc_gov/pdf/rks_substantiation_pno_statement_lk_ab_final.pdf. 

Here, the unrebutted evidence establishes that the deception alleged by Complaint Counsel

would have hurt, not helped, Intuits bottom line. As Mr. Rubin testified, if Intuit had run a

multiyear, multi-ad, multichannel, multimodal, integrated marketing campaign that was

deceptive, as Complaint Counsel allege, the company would [have] go[ne] out of business.

PFF ¶647. Mr. Johnson likewise testified that, if when Intuit was marketing TurboTax Free

Edition, it was creating an expectation among consumers who did not qualify to file for free that

they could, in fact, do so, consumers would have been incredibly disappoint[ed] and would 

leave TurboTax and find another way of filing. PFF ¶96. And as Ms. Ryan testified, Intuits

business depends on TurboTax users start[ing] in the right product for them. PFF ¶73. This

unrebutted evidence about Intuits business interests is consistent with the unrebutted evidence of

Intuits commitment to clarity in its advertising. Again, that commitment provides powerful

48 
 

 

 

 

 

PUBLIC

FEDERAL TRADE COMMISSION | OFFICE OF THE SECRETARY | FILED 05/23/2023 OSCAR NO. 607741 -PAGE Page 58 of 137 * PUBLIC * 

evidence that the ads did not imply any of the false or misleading claims Complaint Counsel

allege. Telebrands, 140 F.T.C. at 304. 

II. COMPLAINT COUNSEL FAILED TO PROVE THAT A SIGNIFICANT MINORITY OF

REASONABLE CONSUMERS WAS LIKELY TO BE DECEIVED

Complaint Counsels case independently fails because Complaint Counsel have not

carried their burden to prove a likelihood of deception. Advertising is misleading [only] if at

least a significant minority of reasonable consumers are likely to take away [a] misleading 

claim from it. Telebrands, 140 F.T.C. at 291. Complaint Counsel thus had to prove that claims

made in the challenged ads were likely to mislead consumers acting reasonably under the

circumstances, DirecTV, 2018 WL 3911196, at *5. Not just any consumers, but reasonable

consumers. Telebrands, 140 F.T.C. at 291 (emphasis added). And not just any number of those

consumers, but a significant minority of them. Id. (emphasis added). Complaint Counsel did 

not carry that burden. They have not articulated a viable theory of deception, missing the mark 

both on the relevant population of consumers in this case and on what it means for consumers in 

that population to have been deceived. In any event, Complaint Counsel have not offered 

evidence that any reasonable consumers were likely to be deceived. In fact, the evidence refutes

any notion that a significant minority of reasonable consumers was deceived. 

A. Complaint Counsels Theory Of Deception Is Misplaced And Unsupported

1. Complaint Counsels theory of deception proceeds from an egregious

misconception of the population of consumers at issue in this case. Their theory is that the

challenged ads conveyed some version of the claim that TurboTax will be free for the consumer

watching the ad, PFF ¶206, and that that claim was likely to mislead reasonable consumers

because [i]t was not true for two-thirds of American taxpayers, PFF ¶463. When the Court

asked to clarify whether Complaint Counsel meant two-thirds of those who attempt to go to the

49 
 

 

 

 

PUBLIC

FEDERAL TRADE COMMISSION | OFFICE OF THE SECRETARY | FILED 05/23/2023 OSCAR NO. 607741 -PAGE Page 59 of 137 * PUBLIC * 

website and use TurboTax, or if they instead mean[t] all tax filers, which is a heck of a lot

bigger sample and makes your number pretty much meaningless, Complaint Counsel confirmed 

that the denominator in their two-thirds fraction was all American taxpayersthat is, the

denominator that makes [Complaint Counsels] number pretty much meaningless. PFF ¶463. 

As Professor Golder explained at trial, the appropriate denominator to assess who qualifies

for free TurboTax products is not [a]ll U.S. taxpayers because many consumers, such as

those who file through paid preparers like CPAs, are simply not  in the market for an

online tax preparation product. PFF ¶464. And as Mr. Johnson testified, of those who 

[actually] use software [do-it-yourself] solutions (i.e., those who file their taxes online), a

majority have a simple return and thus are eligible to file their federal and state taxes

completely for free using TurboTax Free Edition. PFF ¶464; see also PFF ¶129. Of the

remaining minority, moreover, some are very complex filers, PFF ¶464, who could not

reasonably believe they could use a product for simple tax returns only. This proper framing 

devastates Complaint Counsels deception claim.

Complaint Counsel have also offered no viable theory of what it means for consumers to 

have been deceived. The lawsuit the Commission authorized contended that consumers were

deceived by TurboTax ads into coming to the TurboTax website, and that the website then 

further duped consumers into spending substantial time and effort before Intuit performed a bait

and switch, telling consumers at the last minute that their taxes would not be free. PFF ¶11. 

This theory was a total bust, with no evidence adduced to support it and even Professor

Novemsky conceding that by the time consumers had invested time and effort in preparing their

taxes, they had ample opportunity to learn of the qualifications for Free Edition. PFF ¶370; see

also PFF ¶452. Intuits fact witnesses likewise walked through the website repeatedly, 

50 
 

 

PUBLIC

FEDERAL TRADE COMMISSION | OFFICE OF THE SECRETARY | FILED 05/23/2023 OSCAR NO. 607741 -PAGE Page 60 of 137 * PUBLIC * 

demonstrating for the Court that consumers had, over and over again, a full and fair opportunity 

to learn of the qualifications to file for free on TurboTax, before consumers even gave Intuit their

names. PFF ¶¶364-441. 

2. That has left Complaint Counsel with the theory that the ads are deceptive dooropeners. PFF ¶467. Complaint Counsel argue, that is, that the challenged ads were deceptive

simply by virtue of driving consumers to the TurboTax website. PFF ¶467. As the Court

observed, the upshot of this theory is that it doesnt matter what a consumer sees at the

website; all that matters is that the ads induced [consumers] to the website. PFF ¶467. That

theory is incompatible with the law and in any event is disproved by the evidence. 

a. As a threshold matter, Complaint Counsels deceptive door-opener theory 

makes no sense because just inducing a consumer to visit the TurboTax website could not be

actionable deception unless the consumer, once there, pays money that she otherwise would not

have or is otherwise deceived into doing something that harms her. Complaint Counsel have

identified no authority suggesting that, absent such circumstances, the mere fact of the door

opening constitutes actionable deception. To the contrary, courts have rejected deception 

claims even where consumers had to spend significant time on a website before encountering 

price disclosures. See, e.g., Washington v. Hyatt Hotels Corp., 2020 WL 3058118, at *5 (N.D. 

Ill. June 9, 2020); Harris v. Las Vegas Sands L.L.C., 2013 WL 5291142, at *2, *5-6 (C.D. Cal. 

Aug. 16, 2013). And common sense confirms that merely opening the door to the TurboTax 

website is not enough to establish actionable deception, especially since Free Editions

qualifications were accessible at the top of the TurboTax homepage and Free Edition landing 

page throughout the relevant period, PFF ¶¶374-384, 388-398. Simply put, the law does not

51 
 

 

 

 

 

 

 

PUBLIC

FEDERAL TRADE COMMISSION | OFFICE OF THE SECRETARY | FILED 05/23/2023 OSCAR NO. 607741 -PAGE Page 61 of 137 * PUBLIC * 

and should notsupport a finding of actionable deception based on a consumer spending five

seconds on the TurboTax website. 

b. Complaint Counsels theory is independently infirm as a matter of law because, as

noted, deceptive advertising claims should take into account all the information available to 

consumers, Bell v. Publix Super Markets, Inc., 982 F.3d 468, 477 (7th Cir. 2020). In other

words, [t]o analyze whether  ambiguity could mislead a reasonable consumer, courts must

consider[] other information readily available to the consumer that could easily resolve the

alleged ambiguity, Moore v. Trader Joes Co., 4 F.4th 874, 882 (9th Cir. 2021) (emphasis

added). This principle is flatly inconsistent with the premise of Complaint Counsels theory that

(again as stated by the Court) it doesnt matter what a consumer sees at the website, PFF ¶467. 

It is flatly inconsistent because the TurboTax website is expressly mentionedin writing, 

voiceover, or bothin all 131 of the challenged video ads, see PFF ¶¶215, 218, 222, 244, and 

each of the four challenged radio ads, PFF ¶¶294, 299. It also was linked directly by each of the

108 challenged display ads, 17 challenged paid-search ads, and 24 challenged email ads, such 

that consumers who clicked on any one of those ads were taken directly to the website. PFF

¶¶253-254, 269-270, 284-285. The website was thus without a doubt readily available to the

consumer. Moore, 4 F.4th at 882. That is confirmed by the fact that consumers could readily 

reach the website through search results, TurboTax Blog content, press releases, or

articles written by the media. PFF ¶¶387, 469, 871. And Complaint Counsels expert

recognized both that it takes only a few seconds to get to the website by typing TurboTax

into a web browser, and that once on the website it takes only five to ten seconds to encounter

full eligibility information for free TurboTax offers. PFF ¶790. It is even easier for consumers

to click on an online ad, which reasonable consumers understand links to the TurboTax website, 

52 
 

 

 

 

PUBLIC

FEDERAL TRADE COMMISSION | OFFICE OF THE SECRETARY | FILED 05/23/2023 OSCAR NO. 607741 -PAGE Page 62 of 137 * PUBLIC * 

where they can get more information about a free offer. PFF ¶¶254, 270, 285, 520, 522. The

information on the website, moreover, is accessible before consumers have to input their name

or any other personal information. PFF ¶469. Indeed, the information is impossible to avoid, 

as any consumer interested in trying to use TurboTax must access the product through the

TurboTax website (or mobile app equivalent). PFF ¶364; accord PFF ¶785. For all these

reasons, the website cannot be disregarded in analyzing whether a substantial minority of

reasonable consumers was likely to be misled by any claim in the challenged ads. 

Such disregard assuredly finds no support in deceptive door-opener case law. That

doctrine began with Resort Car Rental Systems, Inc. v. FTC, 518 F.2d 962 (9th Cir. 1975) (per

curiam); see also PFF ¶467, a case about a rental-car company that called itself Dollar-A-Day.

The rental cars were in fact not a dollar-a-day, but consumers could not learn that until they 

physically traveled to the brick-and-mortar rental-car facility. Resort Car Rental Systems, Inc., 

83 F.T.C. 234, 281-282 (1973). That is nothing like this case. For starters, the product

advertised here as free is in fact free for the tens of millions of taxpayers who qualify. PFF ¶¶69, 

113-114, 117. By contrast, not a single consumer could get the rental car for the advertised 

dollar-a-day price. Resort Car, 83 F.T.C. at 281-282. And as explained, see supra §D.3, all of

the challenged ads either linked to the TurboTax website where complete product information 

was accessible in a few seconds, PFF ¶790and/or expressly directed consumers to visit it. 

Unlike in Resort Car, then, obtaining full information about the product, including about price

and eligibility, entails virtually no time or effort and is expected by consumers from the ads

themselves. PFF ¶¶364-370, 484, 526-527, 790-791. 

Also unlike in Resort Car, consumers could (and can) visit two or more competitors

websites simultaneously, permitting them to look[] at other software[] at the same time to 

53 
 

 

 

 

 

 

PUBLIC

FEDERAL TRADE COMMISSION | OFFICE OF THE SECRETARY | FILED 05/23/2023 OSCAR NO. 607741 -PAGE Page 63 of 137 * PUBLIC * 

decide which one to use. PFF ¶¶55, 509 (emphasis added). Complaint Counsels expert

agreed, stating that consumers could have more than one browser window open at a time, such 

that they could be in TurboTax and TaxSlayer at the same time. PFF ¶509. Such accessibility 

and cross-shopping, PFF ¶¶55, 509, is not possible in the physical stores for which the

deceptive door-opener concept was developed.

Put simply, the online context is differentwhich is why Complaint Counsel have not

cited a single case applying the door-opener theory in that context. To the contrary, courts in 

that context have, as noted, rejected deception claims even where price disclosures occurred at

the point of sale, i.e., much later than consumers see qualifications on the TurboTax website. 

The court in Washington v. Hyatt Hotels, for example, dismissed a deception claim as a matter of

law because the defendants online purchase process  provide[d] clear and easy access to the

existence, purpose, and amount of the [allegedly deceptive] fee. 2020 WL 3058118, at *5; see

also Harris, 2013 WL 5291142, at *2, *5-6. The same is true of the TurboTax website, which 

provides prompt, repeated, and conspicuous information regarding the qualifications for its free

offers to all consumers who visit. Supra §F; infra Part II.E. 

Other case law confirms that the door-opener concept is inapposite here, even setting 

aside the accessibility of the TurboTax website that distinguishes this case from Resort Car. In 

DirecTV, for instance, the court held the deceptive door opener concept inapplicable where

(1) nothing in [the advertisement at issue] contradicts the true terms of [the advertisers]

provision of services and (2) the advertisement at issue is for a complex product. 2018 WL 

3911196, at *15. The court rejected the concept under those circumstanceseach of which is

also present herebecause a reasonable consumer would understand the limitations of how

information is presented in a space-constrained ad for a complex product. Id. The same is true

54 
 

 

 

 

PUBLIC

FEDERAL TRADE COMMISSION | OFFICE OF THE SECRETARY | FILED 05/23/2023 OSCAR NO. 607741 -PAGE Page 64 of 137 * PUBLIC * 

in this case: As explained in Part I, nothing in the challenged ads contradicts the true terms of

the advertised offers. And as Professor Golder explained at trial, the disclosures Complaint

Counsel seek to require would be out of step with what consumers are seeing, would be

overwhelming for ads on TV [and] even more so in social media, and would not give them

time to process [the] information. PFF ¶845; see also PFF ¶¶829-835, 839-844, 846-847. Even 

Professor Novemsky agreed that the level of information  in the eligibility requirements [for

Intuits free TurboTax offers] could not be effectively communicated in a 30-second television 

commercial. PFF ¶841. In his words, Intuit would overload consumers by providing lots of

complicated qualification criteria in a 30-second commercial or in a 6-second TikTok. PFF

¶841. Reasonable consumers thus would not be deceived by any door-opening ad because

they would understand the limitations of how information is presented in a space-constrained 

ad for a complex product like tax-preparation software. DirecTV, 2018 WL 3911196, at *15. 

In short, this case is unlike those (like Resort Car Rental) in which the deceptive dooropener concept has been applied. It instead resembles cases (like DirecTV, Washington, and

Harris v. Las Vegas Sands) in which the concept has been rejected.

c. Complaint Counsels door-opener theory is also refuted by the record. For

example, Dr. Hauser explained at trial that the results of his Disclosure Efficacy Survey were

inconsistent with the hypothesis that TurboTaxs ad[s] served as misleading door openers,

because had the ads done so, we should see fewer people statistically considering TurboTax 

when he change[d] the advertisements in the manner Complaint Counsel seek to require. PFF

¶737. Instead, Dr. Hauser found that when we actually make these changes , there is no 

statistical difference in the number of consumers who consider TurboTax. PFF ¶738; see also

PFF ¶¶739-745. In other words, Complaint Counsels door-opener hypothesis is rejected 

55 
 

 

 

 

 

 

 

PUBLIC

FEDERAL TRADE COMMISSION | OFFICE OF THE SECRETARY | FILED 05/23/2023 OSCAR NO. 607741 -PAGE Page 65 of 137 * PUBLIC * 

scientifically by the results of the survey because they show the allegedly deceptive

characteristics of the challenged ads are not what cause consumers to consider using TurboTax to 

start their return. PFF ¶738; see also PFF ¶¶739-745. 

The bottom line is Complaint Counsel have offered no viable theory of deception. The

deceptive door-opener concept is inapplicable here, and regardless it finds no support in the

record. 

B. Reasonable Consumers Understand That Free Offers Are Qualified And Are

Skeptical Of Those Offers

Complaint Counsels deception theory ignores the requirement that the challenged ads

must be likely to mislead not just any consumers, but a significant minority of consumers

acting reasonably. Southwest Sunsites, Inc. v. FTC, 785 F.2d 1431, 1436 (9th Cir. 1986). 

Complaint Counsel offered no evidence about what reasonable consumers are like in this

industry, PFF ¶470, and their theory necessarily disregards the experience reasonable consumers

have with TurboTax, the industry, and the challenged ads. Reasonable consumers simply 

deserve far more credit than Complaint Counsel allow. 

The analysis on this point must start[] with the background knowledge of the reasonable

consumer. Dinan v. Sandisk LLC, 2019 WL 2327923, at *6 (N.D. Cal. May 31, 2019). Yet

Complaint Counsel provided no evidence about reasonable consumers familiarity with the taxpreparation industry (including with free offers in that industry), let alone whether deception was

likely given that familiarity. PFF ¶470. The total absence of such evidence is likely because

courts hold that reasonable consumers understand concepts that are commonplace in the

[relevant] market, Ebner v. Fresh, Inc., 838 F.3d 958, 965 (9th Cir. 2016), including that

qualifications or requirements are often  associated with a product, Marksberry v. FCA US 

LLC, 606 F.Supp.3d 1075, 1081 (D. Kan. 2022). And case law aside, Intuit offered ample

56 
 

 

 

 

 

PUBLIC

FEDERAL TRADE COMMISSION | OFFICE OF THE SECRETARY | FILED 05/23/2023 OSCAR NO. 607741 -PAGE Page 66 of 137 * PUBLIC * 

evidence establishing that reasonable consumers understand that free offers are qualified, even if

those qualifications are not provided. PFF ¶¶471-484. This is exactly the type of evidence that

the Commission recognized might provide insights concerning consumers knowledge and 

expectations concerning free claims in Intuits ads. Opinion and Order Denying Summary 

Decision (Jan. 31, 2023), at 12. 

More specifically, reasonable consumers understand that free online tax-preparation 

offers are qualified. PFF ¶¶474-484. Consumers understand that because all major players in the

tax-preparation industry use the same business model, offering a basic free product for

consumers with simple tax returns and paid products for more complex tax situations. See PFF

¶481-482. Indeed, as far back as 2011, that model was already an entrenched part of

the  market. United States v. H&R Block, Inc., 833 F.Supp.2d 36, 46-48 (D.D.C. 2011). The

models ubiquity in that market leads reasonable consumers to expect free tax-preparation offers

to have qualifications tied to the complexity of ones tax returnseven if those qualifications are

not expressly stated. PFF ¶¶483-484; see also PFF¶¶488-490. 

Moreover, many consumers are familiar with TurboTaxs offerings in particular. Nearly 

 of tax returns filed online are filed using TurboTax, and nearly of TurboTax customers

each year are returning customers, meaning that most consumers using TurboTax to file their

taxes used TurboTax in the past. PFF ¶¶48, 93. Many of those consumers are aware of

TurboTaxs paid products based on their personal experience with the brand. PFF ¶¶669-670. 

For example, of the 24.4 million consumers who paid to file their taxes with TurboTax in Tax 

Year 2021, 22.1 millionover 90%were aware of paid TurboTax products because in one or

both of the prior two tax years they were recommended a paid product, started in a paid product, 

or actually used a paid product to file their taxes. PFF ¶¶669-670. That familiarity with 

57 
 

 

 

 

 

PUBLIC

FEDERAL TRADE COMMISSION | OFFICE OF THE SECRETARY | FILED 05/23/2023 OSCAR NO. 607741 -PAGE Page 67 of 137 * PUBLIC * 

TurboTaxs paid products would prevent reasonable consumers from believing that all TurboTax 

products were free or that TurboTax necessarily would be free for them. PFF ¶671. Instead, 

those consumers would understand at a minimum that they would need to determine whether

they qualified for a free TurboTax product in a given year and that (unless their tax situations

had become simple) they were unlikely to be eligible. PFF ¶671. 

On top of that, reasonable consumers understand that for-profit companies (like Intuit)

need to make money to stay in business. See PFF ¶485. Even complaining consumers identified 

by Complaint Counsel acknowledged that because it is a profit-seeking business, Intuit cannot

offer all its products for free to everyone. PFF ¶485. As a result, reasonable consumers viewing 

a free TurboTax ad would understand that TurboTax products are not all free for everyone, and 

hence would not conclude that all TurboTax is free or that TurboTax will necessarily be free

for them. PFF ¶¶483-484, 487-488, 493. 

Even if reasonable consumers were not familiar with free tax-preparation offers, 

unrebutted evidence shows that they would nevertheless understand that free offers more

generally almost always have limitations. PPF ¶¶473-483, 485-488. Indeed, consumers are

consistently exposed to a variety of free offersincluding Buy One Get One (or BOGO) offers. 

PFF ¶474. Those offers are virtually always qualified. PPF ¶474. As a result, reasonable

consumers understand that free offers have limitations, even when advertisements for an offer do 

not state its limitations. PPF ¶¶473-474, 476, 480. That is why hotels can claim kids eat free

without elaborating that the kids must eat with a paying adult, or why pizzerias can claim buy 

one get one free without specifying that the second (free) item must cost the same or less than 

the first. PFF ¶¶474, 477. Even the FTCs free guidelines recognize that the public

58 
 

 

 

 

 

 

 

PUBLIC

FEDERAL TRADE COMMISSION | OFFICE OF THE SECRETARY | FILED 05/23/2023 OSCAR NO. 607741 -PAGE Page 68 of 137 * PUBLIC * 

understands that free offers are usually coupled with the requirement to purchase paid products. 

PFF ¶476. 

Intuits witnesses testified to all this, and documentary evidence confirms it. Mr. Rubin 

and Mr. Johnson both explained that consumers in the tax-preparation industry exhibit free

skepticism and a natural tendency to disbelieve free offers or expect they are too good to be

true. PFF ¶¶486, 488. Market research likewise reflects free skepticism, finding that

consumers have a a natural expectation that  costs are involved with tax-preparation 

products. PFF ¶¶489-490. Research from 2018, for instance, shows that only 22% of consumers

were confident that TurboTax Free Edition was freeeven though it is. PFF ¶490. That

skepticism means that reasonable consumers do not rush to believe, i.e., are not easily deceived 

into believing, that free offers are free for everyone or necessarily free for them. PFF ¶¶485-488. 

Instead, reasonable consumers skepticism leads them to conduct additional research, 

especially when encouraged to do so (as they are by the clear invitation in many of the

challenged ads, supra pp.52-53). PFF ¶506; see also PFF ¶¶471-472, 487, 503-505, 507-508. In 

this industry, reasonable consumers exhibit care and consideration generally, by engaging with 

a variety of information sources and evaluating alternative offers from competitors as part of the

high-involvement process for selecting tax-preparation products. PFF ¶¶513, 782; see also 

PFF ¶¶502-509. That care and considerationas seen in Dr. Hausers Purchase Driver Survey 

(a census survey of all the various things that people do when choosing a tax-preparation

provider, PFF ¶786), and Ms. Kirk Fairs surveyrefutes any likelihood of consumers assuming 

based on the challenged ads that TurboTax must be free for them. PFF ¶¶503, 513, 758, 786-

787. 

59 
 

 

 

 

 

PUBLIC

FEDERAL TRADE COMMISSION | OFFICE OF THE SECRETARY | FILED 05/23/2023 OSCAR NO. 607741 -PAGE Page 69 of 137 * PUBLIC * 

Reasonable consumers were particularly unlikely to be deceived by Intuits ads because

the information the ads provided was appropriate for the stage in the marketing funnel where

those ads were seen, i.e., before consumers had completed or had even started the highinvolvement selection process. PFF ¶¶158-160, 180-181, 183, 188-190, 512-513. The

marketing funnel represents the various points at which a consumer could learn about a brand or

product. PFF ¶¶156-157. At the top of TurboTaxs marketing funnel, for example, is television 

and other advertising designed to reach consumers early in their buying process, in order to 

drive awareness and consideration of the brand and its products. PFF ¶¶157, 159, 510. That

advertising is meant to move [consumers] from being unaware to being aware of their different

tax-filing options. PFF ¶¶180, 510. Reasonable consumers expect and understand that

information conveyed at the top of the marketing funnel will be limited, and that more

information is available. PFF ¶511. Those consumers are thus not likely to be misled by that

top-of-funnel advertising. PFF ¶¶510-513. 

The differences between consumers understanding of and interactions with video and 

online ads underscore Complaint Counsels failure to prove that a significant minority of

reasonable consumers was likely to be misled by the challenged ads. As Professor Golder

explained, medium matters because consumers interact with television and online ads

differently. PFF ¶522. Consumers viewing online adsincluding display, paid-search, and 

email adsunderstand based on experience that they can get additional information by clicking 

on the ads. PFF ¶¶520, 522, 524. That ability to quickly gain access to complete details about a

free offer, and consumers understanding that they can do so, reinforce that consumers do not

expect that all information will be provided in an online ad or immediately jump to the

conclusion that they will qualify for a free offer. PFF ¶¶522-524, 527. In fact, the evidence

60 
 

 

 

 

PUBLIC

FEDERAL TRADE COMMISSION | OFFICE OF THE SECRETARY | FILED 05/23/2023 OSCAR NO. 607741 -PAGE Page 70 of 137 * PUBLIC * 

reflects not only that consumers do not expect those details to be provided in online ads, but also 

that they would be overwhelmed if full details were provided in that format. PFF ¶¶522-524. 

Notwithstanding these key distinctions, Complaint Counsel offered no evidence specific to 

online ads (or video ads or any other kind of ad) demonstrating that consumers were likely to be

misled. PFF ¶525. 

Complaint Counsel are also wrong that consumers expected TurboTaxs free offers to be

available for everyone because a different company has a tax-preparation product that is

supposedly provided at no charge to all consumers. PFF ¶494. That other company, Cash 

App Taxes, engages in and is used by few consumers. PFF ¶495. It is

thus unlikely that reasonable consumers would even be aware of that offer, let alone rely on it to

form their understanding of other companies in the tax-preparation industrynotwithstanding 

the actual practices of those other companies. PFF ¶¶495-498. And even if consumers were

aware of Cash App Taxes, it is in fact not free for all consumers. PFF ¶496. For instance, it is

not available to taxpayers who wish to file multiple state tax returns, part-year state tax returns,

or non-resident state tax returns. PFF ¶496. Nor is it available for taxpayers who require any of

almost two dozen different forms for their federal or state returns. PFF ¶496. Cash App Taxes

limitations only reinforce consumer skepticism when it comes to free tax-preparation offers. 

PFF ¶497. Reasonable consumers would not necessarily assume that Cash App Taxes (or

TurboTax) is free for them, or free to all consumers, as there are no free tax-preparation 

products available to all consumers for all tax situations. PFF ¶497. 

Finally, Complaint Counsel are wrong that the existence of many online products that

are freesuch as Google, Facebook, YouTube, and Spotifywould lead reasonable consumers

to understand that all TurboTax products were free. PFF ¶400. Rather than identifying 

61 
 

 

PUBLIC

FEDERAL TRADE COMMISSION | OFFICE OF THE SECRETARY | FILED 05/23/2023 OSCAR NO. 607741 -PAGE Page 71 of 137 * PUBLIC * 

completely free products, Complaint Counsel mostly identified additional examples of

products that have free offers with restrictions along with paid options with additional features. 

PFF ¶500. YouTube and Spotify, for example, each offer free versions of their products that

require consumers to view ads in order to use them, alongside paid versions of the products that

are ad-free and offer additional features. PFF ¶500. Google similarly offers a basic free version 

of its mail service alongside a paid version that includes more features. PFF ¶500. These

examples confirm that consumers are familiar with (and thus would expect) free offers to have

certain restrictions while being accompanied by paid options. PFF ¶¶478-480, 500. Complaint

Counsel also point to Facebook as an example of a completely free product, PFF ¶501, but the

FTC has rightly argued in litigation that Facebook is not really free, PFF ¶501 (citing FTC

Opposition to Motion to Dismiss at 11, FTC v. Facebook, No. 1:20-cv-03590 (D.D.C. Apr. 7, 

2021), ECF No. 59). In any event, Facebooklike Google, YouTube, and Spotifyis nothing

like a tax-preparation product and says nothing about what is commonplace in the relevant

market in this case, Ebner, 838 F.3d at 965. 

In sum, reasonable consumers know that the free tax-preparation offers made by Intuit

and all its major competitors are qualified, as most free offers are. PFF ¶¶473, 480, 483. 

Complaint Counsel offered no contrary evidence about reasonable consumers knowledge, nor

any justification for ignoring that free offers like Intuits are commonplace in the [taxpreparation] market, Ebner, 838 F.3d at 965. That failure provides another reason to reject their

claims. See Critcher v. LOreal USA Inc., 2019 WL 3066394, at *5 (S.D.N.Y. July 11, 2019)

(dismissing deceptive labeling claims based in part on consumers understanding of the products

grounded in both common knowledge  and consumer familiarity with the products), affd, 

959 F.3d 31 (2d Cir. 2020). 

62 
 

 

 

 

 

 

PUBLIC

FEDERAL TRADE COMMISSION | OFFICE OF THE SECRETARY | FILED 05/23/2023 OSCAR NO. 607741 -PAGE Page 72 of 137 * PUBLIC * 

C. The Ads Communicated To Consumers The Limitations On The Free Offer

Being Advertised

Complaint Counsel have no legally tenable theory of deception, and the ads themselves

belie the theory they offer. PFF ¶¶209-212, 244-246, 262-264, 275-277, 290-292, 299-301. As

explained, none of Intuits ads ever conveyedexpressly or implicitlythat the free offer being 

advertised was unqualified. PFF ¶¶209-211, 242-243, 260-261, 273-274, 288-289, 297-298; see

also supra Part I. But beyond communicating the existence of qualifications, the ads made

consumers aware of the category of qualification and where to get more information, and did so 

at the level of detail appropriate for where consumers were in the buying process. PFF ¶¶241, 

315, 892. The ads thus satisfied the key criteria of effective disclosure[s]. PFF ¶¶312-316. 

And [b]ecause the advertisement[s] adequately disclose[d] the advertised products

qualifications, the net impression of the advertisement[s] on [their] face would not be likely to 

mislead a reasonable consumer. DirecTV, 2018 WL 3911196, at *9. 

1. Explicit SKU identification 

To begin with, nearly all of the challenged ads expressly informed consumers of the

specific SKU being advertised. PFF ¶¶212, 215, 226-228, 250-251, 281, 294, 306, 310. Most

display ads, for instance, stated that the ad was for TurboTax Free Edition or TurboTax Live

Basic. PFF ¶¶250-251. And unrebutted testimony from Intuits executives confirms that the

company mandated that its Free Edition video ads include a [b]lue end card with [the]

TurboTax Free Edition logo (or the TurboTax Live Basic logo) precisely for the purpose of

being clear on what product [it was] advertising, versus other products that [the company]

offer[s]. PFF ¶173. Similarly, before Tax Year 2018, because the name of [Intuits free] offer

[was] Absolute Zero, PFF ¶¶102-103, video ads for that offer included the Absolute Zero

name, PFF ¶103. 

63 
 

PUBLIC

FEDERAL TRADE COMMISSION | OFFICE OF THE SECRETARY | FILED 05/23/2023 OSCAR NO. 607741 -PAGE Page 73 of 137 * PUBLIC * 

The inclusion of the product name in the challenged ads not only makes for an effective

disclosure (in line with respected marketing research literature), but also is critical under the

FTCs .com Disclosure guidelines, which specify that [w]hen identifying the[] claims in an 

ad, the analysis must consider the ad as a whole, including the  product name. PFF ¶320. 

That consideration further dooms Complaint Counsels deception argument because, as

Professor Golder testified, including the product name in the ads made clear to reasonable

consumers that there were multiple TurboTax SKUs and that only the one being advertised was

free. PFF ¶319. The TurboTax product lineup likewise made this fact clear. 

PFF ¶411. Complaint Counsel offered no contrary evidence. PFF ¶321. 

2. Simple tax returns only

Complaint Counsels claim of deception also fails because they did not establish that

consumers were misled by the phrase simple tax returns. As noted, the simple tax returns

only qualification was included in most of the challenged ads, including all the video ads. PFF

¶¶215-217, 227, 232-233, 248-249, 252, 257, 267-268, 272, 281-282, 294, 836; see also supra

64 
 

 

PUBLIC

FEDERAL TRADE COMMISSION | OFFICE OF THE SECRETARY | FILED 05/23/2023 OSCAR NO. 607741 -PAGE Page 74 of 137 * PUBLIC * 

p.41. And again, a precise understanding of that phrase is not necessary to avoid deception; what

matters is that consumers are made aware that only some tax returns may be filed for free. Supra

pp.42-43; see also PFF ¶¶131, 135-136, 310, 312. In using a well-known phrase, Intuit went

beyond that basic requirement, communicating the eligibility criteria for the advertised free

offers in a way that was effective for consumers. PFF ¶¶122-123, 134-136, 139-145. 

The term simple tax returns originated with the IRS, and has long been used by other

federal and state agencies. See PFF ¶¶119, 122-123, 142. It is also pervasive in the online taxpreparation industry, used by Intuit and its competitors for years specifically for the purpose of

describing the qualifications for their free offers. See PFF ¶¶141, 143, 453-454, 458-459. Intuit

chose to include the term for just that reason: As Ms. Ryan testified, 

 because and because it

 PFF ¶123; see also PFF ¶122. This widespread and longstanding use is dispositive, because the reasonable consumer understands concepts that are

commonplace in the [relevant] market, Ebner, 838 F.3d at 965. As Professor Golder explained, 

the ubiquity of the phrase simple tax returns and its use by Intuits competitors is critically 

important from consumers perspective. PFF ¶¶143-144. 

Additional evidence confirms that consumers understood simple tax returns. Intuits

internal testing showed that consumers found the term easy to understand. PFF ¶¶134, 869. 

Furthermore, several consumers provided deposition testimony confirming that they (correctly)

understood the phrase to convey that the ability to use a free TurboTax product depends on the

complexity of ones tax return. PFF ¶635. And Professor Novemsky admitted that participants

in his survey had the same understanding. PFF ¶136. All this belies the assertion in the

Commissions order denying summary decision that Intuit has not put forward  evidence

65 
 

 

 

 

PUBLIC

FEDERAL TRADE COMMISSION | OFFICE OF THE SECRETARY | FILED 05/23/2023 OSCAR NO. 607741 -PAGE Page 75 of 137 * PUBLIC * 

regarding common usage of language. Op. and Order Denying Summ. Decision at 12 (Jan. 31, 

2023). 

Complaint Counsel cannot rebut all this evidence simply by disagreeing with it. They 

had to offer their own evidence, and they didnt. PFF ¶130. Instead, they incorrectly suggested 

before trial that what qualified as a simple tax return changed repeatedly over the years, which 

they say proves that consumers did not understand that phrase. Complaint Counsels Pretrial

Brief at 7 (Feb. 17, 2023); Complaint Counsels Pretrial Proposed Findings of Fact at 3-4 (Feb. 

17, 2023). This factual assertion had to be proven, not just argued. It was not proven, because

Intuits definition of simple tax returnsreturns filed using the most basic form made

available by the IRSdid not change. PFF ¶¶119-123, 147. The IRSs definition changed (once

in the relevant time period), when Congress passed tax-reform legislation before Tax Year 2018 

and the IRS consequently eliminated Forms 1040EZ and 1040A, replacing them with Form

1040. PFF ¶¶119-121, 124. That single changewhich in any event does nothing to undermine

the evidence that reasonable consumers understand the phrase simple tax returnsassuredly 

cannot be held against Intuit, as Intuit obviously had no control over Congresss or the IRS

actions. PFF ¶125. Moreover, if Intuit had refused to align its use of simple tax returns to the

post-tax reform reality (as the Commission and Complaint Counsel apparently believe it should 

have), no one would have qualified to use Free Edition. PFF ¶125. 

Nor does the fact that Intuit has occasionally expanded the tax situations covered by 

TurboTax Free Edition beyond those with simple tax returns do anything to show that consumers

did not understand the phrase simple tax returns. For example, consumers in Tax Years 2020 

and 2021 were threatened with serious hardship as a result of the COVID-19 and student-debt

crises. PFF ¶148. Rather than trying to profit from those unfortunate situations, Intuit decided to 

66 
 

PUBLIC

FEDERAL TRADE COMMISSION | OFFICE OF THE SECRETARY | FILED 05/23/2023 OSCAR NO. 607741 -PAGE Page 76 of 137 * PUBLIC * 

forego additional revenue by making Free Edition available to taxpayers receiving 

unemployment income and paying off student loans. PFF ¶¶146, 148-149. Those actions are

evidence of compassion, not deception. PFF ¶¶146-150. But the point for present purposes is

that these expansions did not alter the definition of simple tax returns. The definition remained

tied to the IRSs. See PPF ¶147. The eligibility expansion meant only that a taxpayer with an 

 would not 

 PFF ¶148 (emphasis added). 

In short, Intuits definition of simple tax returns has remained constantly tied to the

IRSs definition, and consumers have always understood it. PFF ¶¶119-124, 134-136, 139-145. 

As Intuits experts and executives testified, in fact, the level of detail provided by the

phrase simple tax returns only was appropriate for both the particular media and the stage of

the buying process in which the phrase was used. PFF ¶¶122-123, 134-140, 160, 241, 313, 315-

316, 512. Lengthier disclosures (especially in space- and time-constrained ads) would have been 

ineffective, overwhelming consumers with a block of inscrutable text that they likely would have

ignored. PFF ¶¶138-140, 332-333, 523, 833-835, 840-842, 845-846. Providing the same

information included on the TurboTax website, for example, would have resulted in information 

overload, which as mentioned occurs when consumers are given too much information in a

context where they are unable to process it. PFF ¶¶332, 834-835, 332-333, 379, 834-835, 841. 

To avoid such overload, advertisers offer highly detailed informationsuch as a full list of

qualifications and tax situationsonly when consumers are motivated and ready to process the

information, and in an environment where consumers can control the flow of the information 

provided. PFF ¶838. 

67 
 

 

 

 

PUBLIC

FEDERAL TRADE COMMISSION | OFFICE OF THE SECRETARY | FILED 05/23/2023 OSCAR NO. 607741 -PAGE Page 77 of 137 * PUBLIC * 

The use of simple tax returns is also appropriate because it is straightforward and 

avoids complicated tax jargon. PFF ¶¶122-123, 135-136, 139-140, 333. As Intuits executives

explained, [c]onsumers dont really understand tax speak, and hence listing all the covered tax 

forms in the challenged ads would have been PFF ¶333. Testimony from

consumers themselves confirms that reasonable consumers understand the phrase simple tax 

returns better than references to specific IRS forms when describing the qualifications for free

tax-preparation products. PFF ¶139. Likewise, qualitative consumer feedback gathered by Intuit

in 2017 shows that more detailed disclosures would overload consumers with excessive

informationreflecting that consumers appreciate TurboTax disclosures that do not contain 

complicated tax terminology but instead are worded in laymens terms, PFF ¶140. 

Finally, even if reasonable consumers were uncertain about whether they had a simple

tax return, they would not merely assume that they did. PFF ¶131. They would as discussed 

conduct researchand the answer was exceedingly easy to find, in the places reasonable

consumers knew to look, including countless online reviews and the TurboTax website (which 

many of the ads specifically invited consumers to visit for more information, see infra Part

II.C.3). PFF ¶¶131-133, 503-509, 786. Complaint Counsels expert acknowledged this. PFF

¶505. In fact, a basic Google search for what is a simple tax return turbotax typically provided 

the answer (drawn from the TurboTax website) in less than half a second. PFF ¶¶131-132. 

3. See If You Qualify At TurboTax.com or See Details At TurboTax.com

The conclusion that a significant minority of reasonable consumers would not likely be

deceived by the challenged ads is reinforced by the challenged ads explicit invitation to 

consumers to visit the TurboTax website. PFF ¶¶215, 218, 222, 226, 233, 244, 262, 281-282, 

290, 294, 306, 310, 323-326, 893. This language told consumers precisely where to go to find 

full information about eligibility qualifications, satisfying yet another important criterion for

68 
 

 

 

PUBLIC

FEDERAL TRADE COMMISSION | OFFICE OF THE SECRETARY | FILED 05/23/2023 OSCAR NO. 607741 -PAGE Page 78 of 137 * PUBLIC * 

effective disclosures. PFF ¶¶323-326. As the Ninth Circuit recently explained, [t]o analyze

whether  ambiguity could mislead a reasonable consumer, courts must consider[] other

information readily available to the consumer that could easily resolve the alleged ambiguity,

Moore, 4 F.4th at 882. Other courts have likewise st[oo]d by the general principle that

deceptive advertising claims should take into account all the information available to 

consumers. Bell, 982 F.3d at 477. Here, that additional information, which was expressly 

referred to and incorporated into the advertisements, plainly communicated the qualifications of

free TurboTax products or offers. See infra Part II.E. 

Moreover, because most of the challenged ads specifically invoked the TurboTax 

website, or linked directly to it, the content of that site was effectively integrated into the ads

themselves. PFF ¶¶328, 893; supra pp.52-53. The website is also completely integrated into the

product experience, as consumers must visit it (or mobile application) to use Free Edition. PFF

¶329. Under similar circumstances, courts have approved disclosures that, like the ones here, 

put consumers on notice that the complete details of the offer may be found elsewhere. Platt

v. Winnebago Industries, Inc., 960 F.3d 1264, 1277 (10th Cir. 2020). For example, the court in 

Marksberry held that the mere fact that each advertisement for a vehicle warranty did not set

forth all the details or requirements of the Warranty on the advertisement does not indicate

deception because [t]he advertisements informed consumers to review the Warranty for full

details, and the full details were included in the warranty booklet, 606 F.Supp.3d at 1083. 

Testimony from Complaint Counsels investigator, Ms. Shiller, bolsters the adequacy of

Intuits disclosures directing consumers to the TurboTax website. PFF ¶278. As recounted 

above, p.28, Ms. Shiller was shown online search results that included a snippet for the IRS Free

69 
 

 

 

 

PUBLIC

FEDERAL TRADE COMMISSION | OFFICE OF THE SECRETARY | FILED 05/23/2023 OSCAR NO. 607741 -PAGE Page 79 of 137 * PUBLIC * 

File program website that said, Welcome to Free File, where you can prepare and file your

federal individual income tax return for free. PFF ¶278. 

PFF ¶279. Even though only taxpayers with adjusted gross income below a certain level are

eligible for the IRS Free File program, PFF ¶59, nothing in the IRS search result indicated that

there were qualifications for the program, PFF ¶¶278-279. Ms. Shiller nonetheless suggested 

that the IRS search result was not deceptive because it says you can file your taxes for free by 

going to the website, and I do believe taxpayers can file their taxes for free going through the

Free File Program. PFF ¶278. It did not matter, according to Ms. Shiller, that only some

taxpayers can file for free if they go to IRS.gov depending on their qualification, or that the

search result did not identify those qualifications. PFF ¶278. Intuits ads, by contrast, went

above and beyond the IRSs search result by both telling consumers that they can find more

information on the TurboTax website and also disclosing qualifications.

In fact, the ability of consumers to easily access complete offer details renders an 

advertisement for the offer not deceptive even if, unlike here, the advertisement does not

specifically direct consumers to those details. For instance, one court held that the absence of

complete price information in the advertisements for a pharmacy did not make the ads

misleading because the information which the state would require plaintiff to include in the

advertisementscomplete information as to the price of every prescription drug offered at

plaintiffs store[was] readily available to consumers, including by telephoning the store 

or by asking store personnel. South Ogden CVS Store, Inc. v. Ambach, 493 F.Supp. 374, 380 

70 
 

 

PUBLIC

FEDERAL TRADE COMMISSION | OFFICE OF THE SECRETARY | FILED 05/23/2023 OSCAR NO. 607741 -PAGE Page 80 of 137 * PUBLIC * 

(S.D.N.Y. 1980). A fortiori, the qualifying language here is adequate because it does specify 

where complete offer information is available.

Finally, the challenged ads instruction to visit the website was appropriate for the stage

in the buying process at which consumers viewed the ads. PFF ¶¶160, 241, 313, 326. That

invitation reinforced what consumers already knew to do, and what they routinely do for highinvolvement products like tax-preparation software (especially products that consumers use

and/or purchase online): go to the products website for further details. PFF ¶¶326, 369-370, 

505, 526, 790. It is assuredly not deceptive for an ad to give consumers accurate information 

(that they expect to receive) about where they can learn complete information about a free

product or offer being advertised. 

D. The Extrinsic Evidence Does Not Reflect That A Significant Minority Of

Reasonable Consumers Was Likely To Be Deceived

To the extent the ads themselves left any doubt, extrinsic evidence confirms Complaint

Counsels failure to prove that at least a significant minority of reasonable consumers [was]

likely to take away the misleading claim from the challenged ads. Telebrands, 140 F.T.C. at

291. Instead, the extrinsic evidence refutes that notion. 

1. Professor Novemskys survey does not show that Intuits ads were likely to 

deceive reasonable consumers

Complaint Counsel sought to carry their burden of proving that TurboTaxs ads were

likely to deceive a significant minority of reasonable consumers largely through the opinions of

Nathan Novemsky and the perception study on which those opinions rested. But his opinions

cannot remotely carry the weight Complaint Counsel place on them, as it is difficult to imagine a

survey that runs afoul of more widely accepted indicia of reliability than Professor Novemskys, 

or one so clearly designed to reach its desired outcome. Professor Novemsky did not show

survey participants any TurboTax ads (or the website), he failed to employ a scientifically sound 

71 
 

 

 

 

 

PUBLIC

FEDERAL TRADE COMMISSION | OFFICE OF THE SECRETARY | FILED 05/23/2023 OSCAR NO. 607741 -PAGE Page 81 of 137 * PUBLIC * 

test-control design, he asked questions that led participants to provide the answers he wanted, he

used an unrepresentative sample that was particularly prone to biases, and he then overstated his

already-flawed results. Any one of these defects would alone render Professor Novemskys

survey scientifically invalid; together they leave no doubt that the survey should be given no 

weight at all. 

a. Improper survey design. In a case about whether TurboTaxs marketing deceived 

consumers, Professor Novemsky inexplicably chose not to show his survey participants a single

TurboTax ad, or the TurboTax website. PFF ¶¶534-536. As Professor Novemsky 

acknowledged, therefore, survey participants would have answered the questions having seen 

whatever they saw in the worldwhich may well not have included any TurboTax ads. PFF

¶538. Moreover, given that participants were not shown any TurboTax marketingor any

information about TurboTaxs products, for that matterthey had to answer entirely from

memory. PFF ¶536. As other courts have recognized, this kind of memory test is useless

for determining consumer confusion. Instant Media, Inc. v. Microsoft Corp., 2007 WL 2318948, 

at *15 (N.D. Cal. Aug. 13, 2007). Courts accordingly have excluded surveys that were little

more than a memory test. Starter Corp. v. Converse, Inc., 170 F.3d 286, 297 (2d Cir. 1999). 

The survey also did not employ the foundational scientific approach for any experimental

survey: use of a control group and a test group. PFF ¶¶531-540; see also Valador, Inc. v. HTC

Corp., 242 F.Supp.3d 448, 463 (E.D. Va. 2017) (courts routinely hold[] a surveys lack of a

control group or control questions constitutes [a] ground for granting a Rule 702 motion to 

exclude), affd, 707 F.Appx 138 (4th Cir. 2017); Reinsdorf v. Skechers U.S.A., 922 F.Supp.2d 

866, 878-879 (C.D. Cal. 2013) (excluding a control-less survey because it lacked fundamental

reliability). Given that, Professor Novemsky has no way of testing causalityeven though the

72 
 

PUBLIC

FEDERAL TRADE COMMISSION | OFFICE OF THE SECRETARY | FILED 05/23/2023 OSCAR NO. 607741 -PAGE Page 82 of 137 * PUBLIC * 

opinion he offers in this matter is that TurboTaxs marketing caused consumer misimpression. 

PFF ¶¶530-534. As Professor Novemsky himself opined in a prior false-advertising case, it is

impossible to draw any causal inference without an experimental design that includes a

control a group and a test group. PFF ¶532. Absent a control group, Professor Novemsky 

stated under oath, one cannot evaluate what an ad caused consumers to understand or not

understand. PFF ¶532. Yet Professor Novemsky admits that his survey here did not use a testcontrol design; he did not assign his participants to test and control groups, and he did not show

the participants any ads or other stimuli. PFF ¶¶533-534. As Intuits survey expert, Dr. Hauser, 

explained at trial, Professor Novemsky could have give[n] just [the] TurboTax brand name to 

one group and then [the] TurboTax brand name plus advertising plus websites to another group, 

and compared perceptions across the groups. PFF ¶535. But Professor Novemsky did not do 

that. He therefore has no way of establishing that TurboTaxs marketing caused a change in 

perceptions. PFF ¶535. Put differently, Professor Novemskys survey tested for everything,

as he testified, while controlling for nothing. PFF ¶¶534, 538. 

Professor Novemskys failure to use a control group also means he had no way of

preventing the survey questions from influencing his results. PFF ¶539. As Dr. Hauser

explained, Professor Novemsky could have asked a control group the same questions but with a

fictional brand (one that by definition does no actual marketing) substituted for TurboTax; this

would have permitted Professor Novemsky to estimate the portion of his survey results that were

caused by the survey itself, and remove that portion from the results concerning TurboTax. PFF

¶539. Because he did not do so, Professor Novemsky could not eliminate his own survey as a

possible cause for his results. PFF ¶539. 

73 
 

 

 

PUBLIC

FEDERAL TRADE COMMISSION | OFFICE OF THE SECRETARY | FILED 05/23/2023 OSCAR NO. 607741 -PAGE Page 83 of 137 * PUBLIC * 

b. Leading survey questions. Professor Novemskys survey is further flawed 

because his results derive entirely from two multiple-choice questions, each of which was

contaminated by bias [in that] their wording primed respondents to give particular responses, 

Fish v. Kobach, 309 F.Supp.3d 1048, 1060 (D. Kan. 2018), affd sub nom. Fish v. Schwab, 957 

F.3d 1105 (10th Cir. 2020). 

The first was question TAT240, which Professor Novemsky used to identify survey 

participants who were under a misimpression about their ability to file for free. PFF ¶567. In 

both the question and the answer choices, TAT240s wording invited participants to guess. 

TAT240 asked participants to select the answer that best describe[d] their understanding

based on their current information and understanding; that phrasing alone invited participants

to select answers about which they were uncertain. PFF ¶¶568-569. Then, as answer choices, 

TAT240 included I think I can file  for free and I dont think I can file  for free

(underlines in original). PFF ¶568. The use of I think and I dont think further encouraged 

unsure respondents to select one of those answers rather than a third optionI do not have

enough information, id. (underline in original)that was phrased more definitively. PFF ¶569. 

Moreover, participants were especially likely to guess that they could file for free, 

because three previous questions in the survey, including the two that immediately preceded 

TAT240, asked about respondents ability to file for free with TurboTax. PFF ¶572. As Dr. 

Hauser explained, by themselves, these other questions may have been reasonable, but the

cumulative effect of asking about free over and over again was to signal to respondents that the

researcher wanted them to choose I think I can file  for free by the time they got to TAT240. 

PFF ¶573. 

74 
 

 

 

 

 

 

PUBLIC

FEDERAL TRADE COMMISSION | OFFICE OF THE SECRETARY | FILED 05/23/2023 OSCAR NO. 607741 -PAGE Page 84 of 137 * PUBLIC * 

Several of Professor Novemskys survey participants confirmed Dr. Hausers opinion. 

PFF ¶574. When subsequently asked why they thought they could file for free, respondents

provided answers like:

Its been said a few times now during survey that you can file for free using 

TurboTax.

It is evident form [sic] the past questions that it is free.

Because you keep yelling [sic] me I can.

Because this survey is suggesting that I can file it for free.

PFF ¶¶575-576. These responses strongly indicate that many other participants were similarly 

affected by the survey but simply did not voice it. PFF ¶577. 

The second key question in Professor Novemskys survey was TAT255, which was the

sole question Professor Novemsky relied on to identify the source(s) of information that caused

participants purported misimpressions. PFF ¶591. TAT255 read as follows:

You have stated that you think you can file your 2021 income

taxes for free using TurboTax online software. Which of the

following sources played a role in you forming that impression?

Select all that apply. 

(1) TurboTax advertisements

(2) TurboTax website

(3) Word-of-mouth (such as information from family, friends, etc.)

(4) Advice for a financial professional (such as an accountant or a

tax-preparer)

(5) Information online not from TurboTax (such as articles on 

websites, blog posts, etc.)

(6) Other

75 
 

 

 

PUBLIC

FEDERAL TRADE COMMISSION | OFFICE OF THE SECRETARY | FILED 05/23/2023 OSCAR NO. 607741 -PAGE Page 85 of 137 * PUBLIC * 

(7) Dont know / Not sure

PFF ¶592. 

This question was leading because two of the five substantive answer choices

TurboTax advertisements and TurboTax websiteconformed to Complaint Counsels

allegations in this case, increasing the likelihood that participants would respond in the way that

Professor Novemsky wanted. PFF ¶593. On top of that, by the time participants reached 

TAT255, they were well aware that TurboTax was the focus of the surveyand thus likely 

understood (consciously or subconsciously) that the researcher wanted them to choose a

TurboTax-related answer. PFF ¶594. Indeed, over the course of just five questions in the main 

questionnaire, TurboTax had been mentioned twelve times. PFF ¶594. As noted, supra p.73, 

had Professor Novemsky used a control group(s) with a fictional tax brand (or even other real tax 

brands), he could have measured the magnitude of this effect and subtracted it out of his results. 

PFF ¶539, 595. But whether because of a desire to reach certain results or otherwise, he chose

not to. PFF ¶539. 

The surveys leading nature was exacerbated by the fact that TAT255 was not the kind of

question people can be expected to answer from memoryas participants had to do because of

Professor Novemskys decision not to show them any of the challenged ads. It is wellestablished that individuals typically have difficulty remembering accurately the source from

which they obtained particular information. PFF ¶604. Here, rather than ask respondents what

they did or saw, TAT255 asked how they learned something. PFF ¶606. As Dr. Hauser

explained, that is precisely the type of question that individuals cannot be expected to answer

reliably, which means that Professor Novemskys survey participants were especially vulnerable

to leading questions and answers like those Professor Novemsky used. PFF ¶¶606-607. 

76 
 

 

 

PUBLIC

FEDERAL TRADE COMMISSION | OFFICE OF THE SECRETARY | FILED 05/23/2023 OSCAR NO. 607741 -PAGE Page 86 of 137 * PUBLIC * 

c. Unrepresentative and biased survey population. Professor Novemskys survey is

also entitled to no weight due to flaws with his survey population. 

For starters, the 607 people who completed the survey represented less than five percent

of the 12,249 who started it. See PFF ¶542. Courts have deemed similarly paltry response rates

woefully low and inadequate to support reliable results. In re Autozone, Inc., 2016 WL 

4208200, at *17 (N.D. Cal. Aug. 10, 2016), affd, 789 F.Appx 9 (9th Cir. 2019); see also

University of Kansas v. Sinks, 2008 WL 755065, at *4 (D. Kan. Mar. 19, 2008) (noting that a

2.16% response rate is by any standard ... quite low and that it was extremely likely that [such 

a low response rate] exerted a bias on the results (citation omitted)). 

In addition, Professor Novemsky shaped his survey population (in several ways) to 

include only respondents who were likely unfamiliar with TurboTaxs advertising. First, by 

screening out respondents who indicated they had simple tax returns, Professor Novemsky 

excluded the group that Intuit targets with its Free Edition ads, and the one most likely to have

seen them. PFF ¶¶543-545. Second, by excluding everyone who had filed a Tax Year 2021 tax 

return by the time the survey was administered, Professor Novemsky eliminated a group that, 

having recently been in the market for tax software, was more likely to be familiar with 

TurboTaxs products and their qualifications. PFF ¶¶546-549. Third, by designing Group

Awhich he called his main group of interestto include only the survey participants who 

had not used TurboTax in at least the three previous years, Professor Novemsky focused on a

population that was particularly unlikely to have seen or paid attention to TurboTax advertising, 

and for whom that advertising was immaterial. PFF ¶¶550-552. Indeed, there is no way of

knowing whether any Group A respondents had ever used a TurboTax product or even visited 

the TurboTax website. PFF ¶551. And Professor Novemskys survey data reveal that 69.1% of

77 
 

 

 

PUBLIC

FEDERAL TRADE COMMISSION | OFFICE OF THE SECRETARY | FILED 05/23/2023 OSCAR NO. 607741 -PAGE Page 87 of 137 * PUBLIC * 

Group A participants had filed with a TurboTax competitor in the prior three years. PFF ¶551. 

Thus, Group A participants were, if anything, likely to have been influenced by TurboTaxs

competitors advertisingnot by TurboTaxs. PFF ¶552. 

Finally, Professor Novemsky did not adequately safeguard against possible biases within 

his survey population. For one thing, given the media coverage about the issues related to the

FTCs investigationincluding in response to private litigation against Intuitit is likely that a

meaningful number of participants were aware of allegations against Intuit. PFF ¶¶560-564. In 

fact, in one of Dr. Hausers surveys for this case, 24.4% of respondents indicated ligation 

awareness. PFF ¶562. Yet Professor Novemsky did not ask any questions to identify and screen 

out participants who might have been biased due to being litigation aware. PFF ¶563. 

Another likely source of bias lies in Professor Novemskys indefensible decision to 

permit participants who completed his survey to opt out after he informed them that his survey 

was being conducted on behalf of the [FTC], the nations consumer protection agency, in order

to collect information about the reactions and experiences of potential customers to 

advertisements by Intuit, the maker of TurboTax, and that respondents answers could help 

[the FTC] further [its] mission under the FTC Act to protect consumers. PFF ¶¶555-556. 

Ultimately, 164 of 771 participants (or roughly 21%) did opt out, and their answers to the survey 

questions were deleted. PFF ¶557. As the Commission itself has recognized, complete[]

transparen[cy] about the nature or purpose of a survey may create bias in  consumers

decision to participate in the survey or potentially result in biased responsesa flaw that

would affect the accuracy and validity of the information collected and effectively nullify the

survey. PFF ¶558; see also PFF ¶559. The Commission has repeatedly argued to federal

courts, in fact, that revealing a surveys sponsor and purpose is an error that, at minimum, 

78 
 

 

 

PUBLIC

FEDERAL TRADE COMMISSION | OFFICE OF THE SECRETARY | FILED 05/23/2023 OSCAR NO. 607741 -PAGE Page 88 of 137 * PUBLIC * 

warrants giving the survey less weight. FTCs Mot. To Exclude Expert Testimony (Dkt. 155) at

7, FTC v. LendingClub Corp., No. 3:18-cv-02454 (N.D. Cal. Feb. 27, 2020); FTCs Reply ISO

Mot. for Summ. J. (Dkt. 315) at 8, FTC v. Kutzner, No. 8:16-cv-00999 (C.D. Cal. Aug. 14, 

2017); see also Autozone, 2016 WL 4208200, at *8 (excluding a survey because its purpose was

no mystery, creating a problem of self-interest bias). In light of Professor Novemskys

blatantly slanted message to potential respondentsagain, telling them they could help [the

FTC]  protect consumers by assisting with its investigation of Intuit, PFF ¶556the survey 

warrants no weight at all. 

Indeed, courts routinely reject surveys that have an unrepresentative and biased survey 

population, as Professor Novemskys survey plainly does. See Citizens Financial Group, Inc. v. 

Citizens National Bank of Evans City, 383 F.3d 110, 118-121 (3d Cir. 2004) (affirming the

exclusion of a survey that used an unrepresentative sample); Amstar Corp. v. Dominos Pizza, 

Inc., 615 F.2d 252, 264 (5th Cir. 1980) ([W]e do not believe that the proper universe was

examined, and the results of the survey must therefore be discounted.); In re Fluidmaster, Inc., 

Water Connector Components Product Liability Litigation, 2017 WL 1196990, at *28 (N.D. Ill. 

Mar. 31, 2017) (finding survey testimony unreliable where the expert did not survey a

representative sample population); Malletier v. Dooney & Bourke, Inc., 525 F.Supp.2d 558, 630-

631 (S.D.N.Y. 2007) (finding a survey methodology unreliable where respondents were not

representative of the consumers whose confusion mattered in the case). The same approach is

warranted here. 

d. Overstated results that are inconsistent with other metrics. When compared to 

other evidence in this caseevidence lacking the myriad flaws in Professor Novemskys

surveyProfessor Novemskys results are dubious on their face. According to Professor

79 
 

PUBLIC

FEDERAL TRADE COMMISSION | OFFICE OF THE SECRETARY | FILED 05/23/2023 OSCAR NO. 607741 -PAGE Page 89 of 137 * PUBLIC * 

Novemsky, his survey showed that 52.7% of taxpayers who cannot file for free with TurboTax 

erroneously believe that they can. PFF ¶609. But when respondents were presented with only 

the TurboTax brand name in an Intuit copy test from Tax Year 2020 (a test Professor Novemsky 

himself relied on as evidence that the challenged ads cause viewers to believe they can use

TurboTax for free, PFF ¶609, only 33% of survey respondentsa group that included taxpayers

who did qualify to file for free with Free Editionbelieved they could file for free, PFF ¶¶609-

610. Likewise, in an Intuit copy test from Tax Year 2022, 

. PFF ¶¶702-711. Finally, in Dr. 

Hausers Disclosure Efficacy Survey, which once again included taxpayers who would qualify to 

file for free, roughly one-third of all participants indicated that they would actually start in Free

Edition. PFF ¶611; see also PFF ¶¶743-745. While Dr. Hauser was not attempting to measure

the same thing as Professor Novemsky, the two surveys nonetheless measure the same general

construct, so that a researcher would expect them to be in about the same place. PFF ¶611. 

Yet Professor Novemsky reports a substantially higher percentage of individuals who believed 

they could file for free than these other similar measures, despite focusing on a narrower

population. 

As Dr. Hauser put it, Professor Novemskys results simply do not pass the smell test

relative to the numbers weve seen elsewhere. PFF ¶612. When confronted with that reality, 

Dr. Hauser testified, any reputable scientist would want to see if we have some good 

explanations as to why the 52.7 percent is just high relative to these other numbers. PFF ¶612. 

But Professor Novemsky was uninterested in finding such an explanationlikely because he

knew that the explanation would be unhelpful for his preferred outcome. 

80 
 

PUBLIC

FEDERAL TRADE COMMISSION | OFFICE OF THE SECRETARY | FILED 05/23/2023 OSCAR NO. 607741 -PAGE Page 90 of 137 * PUBLIC * 

Professor Novemsky drastically overstates his results in other ways as well. For

example, in order to be able to say that 52.7% of his respondents mistakenly believed that they

could file for free, and that 72% of those respondents attributed that to TurboTax ads and/or the

TurboTax website, he looked only at Group A. PFF ¶615. Looking at the entire survey 

population, 190 of his 607 respondents (or 31.3%) both incorrectly thought they could file for

free and named either the TurboTax website or TurboTax advertising as a source of that belief. 

PFF ¶615. And only a small percentage of even those respondents provided answers with any 

reasonable degree of reliability. PFF ¶616. 

Professor Novemsky also relied on only TAT240 and TAT255 to report his results, 

ignoring the responses to other questions in his surveyresponses that both further expose the

flaws with those questions and further undermine his results. As discussed, supra p.74, TAT240 

was immediately preceded by two open-ended questions that also addressed respondents beliefs

about their ability to file for free. PFF ¶579. After Professor Novemsky omitted the answers to 

those questions from his results, Dr. Hauser instructed blind coders who were unaware of the

parties and issues in this case to analyze those open-ended responses. PFF ¶¶580-583. That

gold-standard analysis determined that 116 of the 190 supposedly deceived survey participants

had provided open-ended responses that were inconsistent with their answer to TAT240, i.e., 

responses that suggested they were not deceived. PFF ¶616; see also PFF ¶584. For example, 

Respondent ID 9900s answers to the open-ended questions were, [t]here is a free option, but

my filings require paid, and [a]nyone filing a basic 1040 can file for free using TurboTax, 

PFF ¶585answers making clear that the participant did not expect to be able to file for free and 

understood that TurboTaxs free offers were only available for simple returns. Yet Professor

Novemsky treats Respondent ID 9900 as being under a definitive misimpression because he or

81 
 

 

PUBLIC

FEDERAL TRADE COMMISSION | OFFICE OF THE SECRETARY | FILED 05/23/2023 OSCAR NO. 607741 -PAGE Page 91 of 137 * PUBLIC * 

she answered I think I can file  for free in response to TAT240. PFF ¶585. For that

participant and the others who gave inconsistent responses, the open-ended responses cast

significant doubt about the reliability of their response to TAT240, such that Professor

Novemsky has no way of validly concluding that they are actually under a misimpression. PFF

¶587. Professor Novemsky, again, elided all this by simply (and without justification) ignoring 

the answers to all but two of his questions when reporting his results. 

Of the remaining 74 participants, 40 of themmore than half, that isselected a

response(s) to TAT255 (the question asking them to identify the source of their understanding 

that they could file for free) in addition to TurboTax advertisements and TurboTax website.

PFF ¶617. The survey results for those 40 participants were also unreliable, because Professor

Novemsky did nothing to identify the principal source of those participants impressions, or

otherwise attempt to disentangle the relative roles played by the multiple sources identified. PFF

¶¶618-619. 

Even if all the other flaws with the survey were set aside, only 34 participantsor 5.6%

of the total population of 607 respondentsprovided even potentially relevant responses. PFF

¶¶620-622. That percentage falls well short of what is required to prove deception. See

Telebrands, 140 F.T.C. at 446-448 (FTC cases suggest that the Commission would be justified 

in considering levels of ten percent net takeaway sufficient, and citing cases holding similarly). 

2. The paltry number of consumer complaints lodged over Intuits ads proves

that no significant minority of reasonable consumers was likely deceived

If, as Complaint Counsel contends, Intuit had engaged in a wide-ranging multi-year

marketing campaign that was deceptive, Intuit would be overwhelmed with complaints, in every 

channel. PFF ¶647. That is because a hallmark of deceptive advertising is a large number of

consumer complaints relative to the number of users of the product. PFF ¶¶624-625. As

82 
 

 

 

 

PUBLIC

FEDERAL TRADE COMMISSION | OFFICE OF THE SECRETARY | FILED 05/23/2023 OSCAR NO. 607741 -PAGE Page 92 of 137 * PUBLIC * 

Professor Golder explained, consumer complaints are a clear signal of any alleged deception

consumers who expect to receive a product for free but ultimately have to pay for it because they 

were misled would naturally be angry, and such anger would manifest itself in a high rate of

consumer complaints. PFF ¶625. But here there is no flood of complaintsnot by a longshot. 

Complaint Counsel identified only 228 complaints filed over the course of six years (between 

January 1, 2016, and March 28, 2022) in the FTCs Consumer Sentinel database, which collects

complaints made not only directly to the FTC but also to many others, including state attorneys

general, the BBB, and other federal and state agencies. PFF ¶¶627-630. These complaints

which constitute an infinitesimal fraction of the millions of consumers who saw the challenged 

adsdo not establish that a significant minority of reasonable consumers was likely deceived. 

The small number of complaints is in fact strong evidence to the contrary. PFF ¶¶625-626, 639. 

As an initial matter, Complaint Counsel overstate the number of consumer complaints

that are relevant to the alleged deception. As noted, Complaint Counsel point to 228 complaints. 

PFF ¶630. But Professor Golders independent coding analysis confirms that the majority of

those are potentially irrelevanteither because the substance of the complaints are unrelated to

the allegations here or the relationship of the complainants to TurboTax suggests some other

bias. PFF ¶636. In fact, Professor Golders analysis of the 396 complaints that Complaint

Counsel originally contended were relevant revealed as few as 120 potentially relevant

complaints over a six-year period0.0001% of the 86.4 million TurboTax customers during that

same time, as shown below. PFF ¶636. 

83 
 

 

 

 

PUBLIC

FEDERAL TRADE COMMISSION | OFFICE OF THE SECRETARY | FILED 05/23/2023 OSCAR NO. 607741 -PAGE Page 93 of 137 * PUBLIC * 

Given the questionable relevance of many of the complaints, verifying them was a natural

(and imperative) step in order for them to have any probative value. PFF ¶633; see also PFF

¶¶634-635. But Complaint Counsels efforts to verify these complaints was minimal to 

nonexistent. PFF ¶633. In fact, Ms. Shiller attempted to contact just twelve complainants, and

ultimately spoke to only two. PFF ¶918. Not only that, but Ms. Shiller did not even read most

of the complaints she compiled. PFF ¶917. Given all this, there is no support for finding that

even the 228 consumers actually complained that they were deceived by any of the challenged 

ads.

But even if all 228 complaints are relevant and reliable, that small number proves that no 

significant minority of reasonable consumers was deceived. PFF ¶631. The 228 complaints

represent just 0.0003% of the 86.4 million TurboTax customers who completed at least one

return during the Tax Year 2015 to 2021 period (or, as shown below, 0.0005% if the slightly 

84 
 

PUBLIC

FEDERAL TRADE COMMISSION | OFFICE OF THE SECRETARY | FILED 05/23/2023 OSCAR NO. 607741 -PAGE Page 94 of 137 * PUBLIC * 

larger set of 396 complaints that Complaint Counsel previously relied on is considered). PFF

¶¶631-632. When calculated in terms of complaints per 1,000 consumers, the complaint rate

would be only 0.0025much lower than the range of 0.35 to 143.8 found in other FTC

consumer-protection cases. PFF ¶¶641-642; see also PFF ¶¶643-644, 646. And when calculated 

based on Complaint Counsel rebuttal expert Erez Yoelis contention that over 100 million 

consumers in one year could have been deceived, the complaint rate is so low that Mr. Yoeli said 

he cant keep track of the zeros. PFF ¶645. This miniscule rate is orders of magnitude too 

small to support a finding that a significant minority of reasonable consumers was deceived. 

PFF ¶¶623, 631-632. 

PFF ¶631. 

The tiny number of complaints is especially inconsistent with the allegation of

widespread deception given how many times the challenged ads ran. Over the six-year period in 

85 
 

 

 

PUBLIC

FEDERAL TRADE COMMISSION | OFFICE OF THE SECRETARY | FILED 05/23/2023 OSCAR NO. 607741 -PAGE Page 95 of 137 * PUBLIC * 

which the 228 complaints were submitted, the challenged ads were distributed tens of billions of

times. PFF ¶637. Even considering only the advertisement clicks from Tax Years 2020 and 

2021, and ignoring consumers who would have seen ads through other mediums in other years, 

the full set of 228 complaints amounts to just 0.000175% of those who clicked on a TurboTax 

ad. PFF ¶637. Complaint Counsel have cited no case in which deception has been found in the

face of a complaint rate even remotely that low, and to Intuits knowledge there is no such case. 

That is undoubtedly because common sense makes clear that if ads displayed billions of times

were deceptive, more than (at most) 228 consumers would have complained. 

To confirm this logical intuition, Professor Golder performed a complaint-benchmarking 

analysis, which confirms that the number of complaints is entirely inconsistent with Complaint

Counsels theory of deception. Professor Golder compared Intuits rate of complaints on the

BBB website with the rate for each of 18 benchmark companies (including direct tax-preparation 

service competitors such as H&R Block, TaxAct, TaxSlayer, FreeTaxUSA, and Cash App 

Taxes). PFF ¶638. Intuits rate of (31.3 complaints per million customers) was statistically 

significantly less than that of other companies (191.2 complaints per million customers). PFF

¶638. That far fewer consumers complained about Intuit relative to other companies further

undermines the suggestion that Intuit engaged in a deceptive advertising campaign, much less a

widespread and long-term one. PFF ¶639; see also PFF ¶¶625-626. In contrast, Professor

Golder pointed to well-known instances of recent deception that resulted in substantially 

higher numbers of complaints. PFF ¶640. And any suggestion that consumers are lazy 

misers who are unlikely to complain, see PFF ¶927, is not only a surprising sentiment from the

nations consumer protection agency, but also plainly belied by the fact that there are far more

86 
 

 

PUBLIC

FEDERAL TRADE COMMISSION | OFFICE OF THE SECRETARY | FILED 05/23/2023 OSCAR NO. 607741 -PAGE Page 96 of 137 * PUBLIC * 

complaints for the other businesses examined, and in real instances of deception, the complaint

volume is much higher. 

3. Data concerning consumers experiences show that reasonable consumers

were not deceived 

a. Metrics. Numerous other metrics concerning consumers experiences with 

TurboTax provide strong evidence that those experiences were consistent with consumers

expectations, including expectations created by the challenged ads. 

Complaint Counsel tried to suggest that consumers starting but not finishing using 

TurboTax Free Edition is evidence of deception, PFF ¶655, but the data say otherwise. The

abandonment rates for TurboTaxs paid and free products are the same, 22%. PFF ¶656. That

symmetry shows that consumers are abandoning TurboTax not because they feel misled about

whether they could file for free (a reason specific to free products), but instead for a reason (or

reasons) common to all productssuch as losing confidence in their ability to file on their own, 

87 
 

 

 

 

 

PUBLIC

FEDERAL TRADE COMMISSION | OFFICE OF THE SECRETARY | FILED 05/23/2023 OSCAR NO. 607741 -PAGE Page 97 of 137 * PUBLIC * 

because they are only using the software to double-check what they are being told by another

tax-preparation provider, or because they are comparing different tax-preparation options. PFF

¶657; see also PFF ¶658. If consumers felt misled by Intuits advertising, one would expect

many of them to abandon TurboTax returns once they were told it was not free, resulting in a

higher abandonment rate for free products. PFF ¶657. 

Intuits data also show that Intuit is successful at reaching qualifying consumers with its

free TurboTax ads and, more broadly, getting consumers to start in the right SKU. Each year,

. PFF ¶659. In Tax Year 2018, 

for example, did so. PFF ¶659. And in Tax Year 2020, 

did. PFF ¶659. Those figures outpace the 50% of consumers in the online tax industry who 

qualify to file for free, PFF ¶129, demonstrating that eligible consumers are getting the message

that Free Edition is free, PFF ¶660. Moreover, data show that most consumers between 

Tax Years 2014 and 2021start and finish in the same SKU. PFF ¶661. That holds true for

Free Edition: Between Tax Years 2014 and 2021, of consumers who started in Free Edition 

finished in it. PFF ¶82. Even for consumers who did not use the SKU selector before selecting 

Free Edition, approximately 75% who started in that product finished with it. PFF ¶434. These

percentages are especially impressive given that third-party review websites like the New York 

Times Wirecutter recommended that consumers start with Free Edition even if they know

they do not qualify. PFF ¶¶433, 662. 

TurboTaxs high customer-retention rate also reflects that consumers were not misled 

into believing that all TurboTax was free or that they themselves could file for free when that

was not the case. If consumers were lured to TurboTax with false or misleading promises, it is

unlikely they would keep coming back. PFF ¶649. To the contrary, if Intuit had engaged in the

88 
 

 

 

PUBLIC

FEDERAL TRADE COMMISSION | OFFICE OF THE SECRETARY | FILED 05/23/2023 OSCAR NO. 607741 -PAGE Page 98 of 137 * PUBLIC * 

wide-ranging and long-running deceptive ad campaign alleged, consumers would be angry and 

less likely to return to TurboTax, resulting in a lower retention rate. PFF ¶649. 

But TurboTax customers do keep coming back. In fact, TurboTaxs retention rate for

paid TurboTax SKUs is 83%. PFF ¶650; see also PFF ¶92. This compares favorably to 

TurboTaxs competitors, who, on average, have a retention rate . PFF ¶91. 

Intuits high retention rate for paid SKUs contradicts Complaint Counsels claim, because these

paying users are the ones Complaint Counsel would argue were somehow deceived by Intuits

free advertising, and therefore the ones who would be least likely to return year after yearif

there were any deceptive advertising. PFF ¶650; see also PFF ¶651. 

TurboTaxs consistently high customer ratings and positive reviewsby independent

reviewers as well as by consumers on the TurboTax websitealso suggest the absence of

deception. PFF ¶652. If consumers were misled into using a free TurboTax product for which 

they are not eligible, they would express that frustration, including in product ratings and 

reviews. PFF ¶652. But the record does not reflect anything of the sort; instead, both paid and 

free TurboTax products have consistently received overwhelmingly positive customer feedback. 

PFF ¶¶653-654. For example, in Tax Year 2021, hundreds of thousands of customer reviews of

TurboTaxs products generated average ratings between 4.4 and 4.9 out of 5 stars. PFF ¶653. 

b. Data regarding Intuits Tax Year 2021 customer base. Intuits internal

customer-level data reflecting actual customer behavior further contradict any claim that a

significant minority of reasonable customers was likely deceived by the challenged ads. 

To assess whether there was direct evidence of widespread deception in the manner

alleged, Mr. Deal analyzed data on the roughly 55.5 million Intuit consumers who created or

logged into a previously created TurboTax online account on the TurboTax website. PFF ¶¶663-

89 
 

 

 

PUBLIC

FEDERAL TRADE COMMISSION | OFFICE OF THE SECRETARY | FILED 05/23/2023 OSCAR NO. 607741 -PAGE Page 99 of 137 * PUBLIC * 

664. He found that most consumers filed for free, did not file with TurboTax, or based on their

previous experience using TurboTax or awareness of their own tax situation were unlikely to 

have believed that TurboTax was free for them. PFF ¶663. 

In the first phrase of his analysis, Mr. Deal found that approximately 97.6% of the 55.5 

million Intuit customers in Tax Year 2021 exhibited characteristics or behaviors inconsistent

with the deception Complaint Counsel allege. PFF ¶674. At the outset, 13.4 million customers

used TurboTax to file their federal and state tax returns for free in Tax Year 2021. PFF ¶665. 

These customers could not have been deceived by Intuits advertisements because, to the extent

they formed an expectation that they could file for free, those expectations were met. PFF ¶665. 

An additional 17.6 million customers examined by Mr. Deal accessed or created a TurboTax 

account in Tax Year 2021 but did not complete a return with TurboTax. PFF ¶666. None of

these consumers paid any fees to Intuit in connection with preparing their taxes. PFF ¶666. Nor

did these consumers spend significant time on the TurboTax websitein fact, 6.8 million of

them did not even start a tax return. PFF ¶¶666, 668; see also PFF ¶667. As for customers who 

did start a return with TurboTax, they typically were told they did not qualify for Free Edition 

(assuming they did not abandon for another reason) within 30 minutes of starting their return. 

PFF ¶668. And that 30-minute figure likely overstates how long consumers were actively using 

the product, as Mr. Deal considered elapsed time between when the return was started and the

time when the consumer encountered a message telling them they did not qualify for Free

Edition. PFF ¶668. If a consumer stepped away to take a ten-minute phone call, for example, 

those ten minutes would still count towards the elapsed time. PFF ¶668. There is no evidence

that any of these consumers were materially deceived. PFF ¶¶666, 668. 

90 
 

 

PUBLIC

FEDERAL TRADE COMMISSION | OFFICE OF THE SECRETARY | FILED 05/23/2023 OSCAR NO. 607741 -PAGE Page 100 of 137 * PUBLIC * 

Among the remaining 24.4 million customers who paid to use TurboTax in Tax Year

2021, the overwhelming majority (22.1 million) had previously used or been recommended to 

use a paid TurboTax product in the prior two tax years. PFF ¶¶669-670. Reasonable consumers

familiar with Intuits paid TurboTax SKUs and their own tax situations were unlikely to believe

either that all TurboTax products were free or that TurboTax necessarily would be free for them. 

PFF ¶671. Many of these same 22.1 million customers were also among the 7.3 million paying 

customers identified by Mr. Deal who elected to purchase additional optional, paid TurboTax 

services. PFF ¶672. This behavior is inconsistent with deception, because if a reasonable

consumer were misled into believing they could file their tax return for free when they could not, 

it would make little sense for them to voluntarily pay even more. PFF ¶672. Finally, 

approximately 4 million paying customers elected to upgrade from Free Edition to a paid 

TurboTax SKU to itemize deductions and maximize their tax refunds, despite being eligible to 

use Free Edition. PFF ¶673. These consumers were free to file their taxes for free, started in the

TurboTax free product, but ultimately chose to switch. It can hardly be said that the challenged 

advertisements deceived them. PFF ¶673. 

In the second phase of his analysis, Mr. Deal further examined the remaining 1.3 million 

paying customers to identify the group most susceptible to the deception alleged by Complaint

Counsel and to determine whether there was any direct evidence they actually were deceived. 

PFF ¶675. To do so, Mr. Deal focused on the 43,776 new Free Edition customers unfamiliar

with the product, who found the product through a TurboTax advertisement, spent a material

amount of time using the product (60 minutes) before being told they were not eligible for Free

Edition, and ultimately decided to upgrade to a paid SKU. PFF ¶678. But when he examined 

the actual behavior of those specific customers, Mr. Deal found no evidence of widespread 

91 
 

PUBLIC

FEDERAL TRADE COMMISSION | OFFICE OF THE SECRETARY | FILED 05/23/2023 OSCAR NO. 607741 -PAGE Page 101 of 137 * PUBLIC * 

deception. Just 510 of the 43,776 customers he examined even potentially viewed themselves as

having been deceived. PFF ¶¶679-682. Those 510 customersfar less than 1% of Intuits Tax 

Year 2021 customer basedo not support finding that a significant minority of consumers were

likely deceived, and there is no logical reason to believe there would be greater rates of negative

customer sentiment evidencing widespread deception among the less-impacted, less-vulnerable

groups Mr. Deal identified as being unlikely to have been deceived earlier in his analysis. 

The significance of Mr. Deals testimony is perhaps best illustrated by the feeble rebuttal

offered by Complaint Counsels rebuttal witness Erez Yoeli. Mr. Yoeli used an idiosyncratic

definition of deception that excluded materiality and offered by his own account the not  very 

strong opinion that the customers identified by Mr. Deal as unlikely to have been deceived 

could have been deceived. PFF ¶930. Mr. Yoeli was entirely unfamiliar with the record, 

reviewing only five produced documents, none of the challenged ads, and none of the Intuit

employee depositions or testimony. PFF ¶930. He also reviewed only a small subset of the

materials Mr. Deal reviewed, PFF ¶930, a peculiar and problematic choice when offering a

rebuttal opinion. His rebuttal is entitled to no weight, and the fact that this was the best

Complaint Counsel could do to rebut Mr. Deal is quite telling. 

4. Reliable consumer testing and survey evidence reflect that no significant

minority of reasonable consumers was likely deceived 

Intuit has presented credible and scientifically sound evidence, from both fact and expert

witnesses, regarding the effect the companys advertising had on consumers understanding and 

behavior. This evidence confirms that Intuits advertising did not likely deceive a significant

minority of reasonable consumers. 

a. TY2020 NPS Study. A Net Promoter Score survey from Tax Year 2020 (the

TY2020 NPS study) demonstrates that TurboTax advertisements did not mislead a significant

92 
 

 

 

PUBLIC

FEDERAL TRADE COMMISSION | OFFICE OF THE SECRETARY | FILED 05/23/2023 OSCAR NO. 607741 -PAGE Page 102 of 137 * PUBLIC * 

minority of reasonable consumers into believing that all TurboTax is free or that it was free for

them. The study asked over 2,000 TurboTax customers whether they were aware of a free

TurboTax product   TurboTax. PFF ¶716. Roughly half of respondents

(48%) answered affirmatively, which was barely more than the 44% of respondents who had 

actually filed their taxes for free with Free Edition. PFF ¶717. By contrast, only of

respondents who had used a paid TurboTax product indicated that they were aware that

TurboTax had a free offering before they chose to use TurboTax. PFF ¶719. 

These results demonstrate that Intuit has largely been successful in having its free

TurboTax advertisements reach qualifying consumers. PFF ¶720. They also demonstrate that

consumers who come to the TurboTax website expecting to file for free are filing for free, while

consumers who visit the website expecting to pay to file their taxes are finding TurboTaxs paid 

offerings. PFF ¶721. That consumers experiences closely match their expectations refutes

Complaint Counsels argument that TurboTax advertising misled consumers into erroneously 

believing they could use TurboTax to file for free. 

b. Disclosure Efficacy Survey. In his Disclosure Efficacy Survey, Dr. Hauser used 

a test-control design to test whether a number of changes to TurboTaxs ads and website would 

affect consumer behaviorand found that they would not. PFF ¶¶722-723. Dr. Hauser showed 

one group of participants (the Original Disclosures Group) ads and webpages that mirrored 

TurboTax advertising from Tax Year 2021, with the only change being that the TurboTax brand 

was replaced with a disguised brand name (Vertax) to prevent respondents pre-conceived views

from affecting the results. PFF ¶¶725-727, 733. He showed a second group of participants (the

Revised Disclosures Group) Vertax ads and webpages that were revised in several ways to 

address Complaint Counsels allegations in this matternamely, reducing the repetition of and 

93 
 

 

 

 

PUBLIC

FEDERAL TRADE COMMISSION | OFFICE OF THE SECRETARY | FILED 05/23/2023 OSCAR NO. 607741 -PAGE Page 103 of 137 * PUBLIC * 

emphasis on the word free and adding additional and more prominent information about Free

Editions qualifications. PFF ¶¶728, 730, 734. After being shown the ads and webpages, 

members of each group were asked three questions: (1) whether they would consider filing their

taxes with Vertax; (2) if so, which product they would choose from the Vertax product line-up

(which replicated TurboTaxs line-up); and (3) how likely they would be to actually start in that

product. PFF ¶¶735-736, 739, 741. 

If the challenged ads in this case were deceptive, one would expect that changing them to 

reduce the emphasis on free and provide consumers more information about Free Editions

qualifications would discourage consumers from considering the brand and from starting in Free

Edition. PFF ¶742. But the Disclosure Efficacy Survey shows otherwise: modifying 

TurboTaxs marketing to address Complaint Counsels allegations had no effect on consumer

behavior. PFF ¶722. 

Confronted with these results, Complaint Counsel have resorted to arguing that the

surveys revised ad was just as deceptive as the original ad. PFF ¶731. That contention defies

credulity: On its face, the revised ad survey conspicuously informed participants (verbally and 

in written text) that Not all taxpayers qualify and invited them to See if they qualify at

Vertax.com. PFF ¶¶730, 731. The disclosures in the revised ad, moreover, were comparable to 

those in the actual ads that Intuit subsequently produced for Tax Year 2022which copy testing 

conclusively demonstrates are not deceptive. PFF ¶731. Because the revised ad caused no 

change in consumer behavior compared to the original ad (which was substantively identical to 

the challenged ads), the Disclosure Efficacy Survey is strong evidence that the challenged ads

were not deceptive either. 

94 
 

 

 

 

 

PUBLIC

FEDERAL TRADE COMMISSION | OFFICE OF THE SECRETARY | FILED 05/23/2023 OSCAR NO. 607741 -PAGE Page 104 of 137 * PUBLIC * 

c. Kirk Fair survey. The survey conducted by Rebecca Kirk Faira survey expert

the FTC has previously retained, PFF ¶905further confirms that Intuits ads were not

deceptive. Her survey presented participants with a Free Edition advertisement and instructed 

them to imagine they had begun filing their tax returns in Free Edition. PFF ¶750. While

working on their returns, respondents were told they did not qualify to use Free Edition and 

shown one of three upgrade screens, one of which mirrored the screen Intuit used and two of

which were test upgrade screens that contained more or less information than the actual one. 

PFF ¶¶750-753. After respondents were presented with one of the three screens, they were asked 

questions about different tax-preparation solutions they would consider using, including Free

Edition and alternatives beyond TurboTax. PFF ¶754. 

If Complaint Counsel were correct that consumers start using TurboTax because they are

deceived into believing they can file for free, one would expect to see a substantial, statistically 

significant reduction in respondents selection of a TurboTax paid product after learning of [an]

additional free option. PFF ¶755. The survey, however, showed the opposite, as there was no 

statistically significant difference among the responses of the three different screen groups. PFF

¶756. The survey thus demonstrates that consumers shown Free Edition ads did not feel they 

were misled after being told they did not qualify. 

Relatedly, the fact that consumers recognized they could use non-TurboTax products but

still largely remained with TurboTax is inconsistent with the notion that they explored only 

TurboTax because they believed they could file for free. PFF ¶759. Regardless of which 

upgrade screen they saw, respondents in the Kirk Fair survey said they chose a TurboTax paid 

product primarily because of their particular tax situation, followed by their trust in the

TurboTax brand and the features in TurboTax products. PFF ¶759. 

95 
 

 

 

 

 

 

 

 

PUBLIC

FEDERAL TRADE COMMISSION | OFFICE OF THE SECRETARY | FILED 05/23/2023 OSCAR NO. 607741 -PAGE Page 105 of 137 * PUBLIC * 

E. Detailed Information Is Clear, Upfront, And Ubiquitous At TurboTax.com

To the extent consumers were uncertain or confused about whether a free TurboTax offer

being advertised was qualified or whether it was free for them, TurboTaxs website would have

promptly made clear both the existence and the specifics of the qualifications for the offer. 

Considering the information provided on the website, as required here, see supra p.43; Part II.A, 

it is plain that the website helped ensure reasonable consumers were not somehow misled into 

believing that all TurboTax is free or that it was necessarily free for them.

At the TurboTax website, consumers were (and are) presented with clear, prominent, and 

repeated information about the qualifications for TurboTaxs free offers. Thus, it is unsurprising 

that several of Complaint Counsels witnesses acknowledged the extensive nature of the

websites disclosures and how quickly consumers would see the qualifications for free TurboTax

offers. PFF ¶369. 

When consumers clicked a simple returns hyperlink on any of the TurboTax webpages, 

a window detailing the qualifications for the free offer in question popped up on the screen. PFF

¶¶379, 391, 415. Two factors drove Intuits decision to include these details in a pop-up screen. 

First, using a pop-up is a way of disrupting the consumers viewing pattern to draw their

attention to something thats really important. PFF ¶383. Second, keeping the detailed 

qualifying information in the pop-up screen, as opposed to on the home or landing page, avoids

overwhelming consumers with too much information to really read and comprehend. PFF

¶383. By allowing consumers [to] control the pace at which they see that information, Intuits

strategy of combining hyperlinks announcing the existence of qualifications with pop-up 

windows that provide the details when the hyperlinks are clicked decreased the likelihood that

consumers would tune out and not try to process something thats an overwhelming message.

PFF ¶379. In other words, by structuring the websites disclosures how it did, Intuit increased

96 
 

 

PUBLIC

FEDERAL TRADE COMMISSION | OFFICE OF THE SECRETARY | FILED 05/23/2023 OSCAR NO. 607741 -PAGE Page 106 of 137 * PUBLIC * 

the chances that consumers would notice, and comprehend, the qualifications for TurboTaxs

free offers.

If consumers took steps to start preparing their tax return using TurboTax, they were

taken to the Products & Pricing page, which all new consumers see before they begin preparing 

their taxes with a TurboTax product. PFF ¶¶408-409. That page provided additional details

about each TurboTax product, including the prices of each and relevant qualifications, PFF

¶¶413-414, and multiple disclosures stating that TurboTax Free Edition is available for simple

tax returns only, PFF ¶¶415-416. The Products & Pricing also included a SKU selector tool, 

which enables consumers to receive a recommendation for the TurboTax SKU most likely suited 

to their tax situation. PFF ¶¶419-420. When the SKU selector recommended TurboTax Free

Edition, the website again disclosed that Free Edition is For simple tax returns only. PFF

¶427. A screenshot of the SKU Selector from Tax Year 2022, RX1532, is displayed above (at

p.24), and again below:

PFF ¶421. 

97 
 

 

 

 

 

PUBLIC

FEDERAL TRADE COMMISSION | OFFICE OF THE SECRETARY | FILED 05/23/2023 OSCAR NO. 607741 -PAGE Page 107 of 137 * PUBLIC * 

All of this taken together means that consumers who arrived at the TurboTax website

could easily and quickly learn the full details of the qualifications to file for free with TurboTax, 

see the full range of products on offer, and use tools and other information to assess the

appropriate TurboTax product for their tax situation. Quite simply, it would make no sense to 

run deceptive advertisements and then provide all of this information on the website before a

customer even provided TurboTax with their name, let alone before they paid to use TurboTax. 

More importantly, a reasonable consumer who went to the TurboTax website (as one must to use

the products at issue in this case) would not have been misled. That is dispositive.

* * * 

Complaint Counsel bore the burden to prove that a significant minority of reasonable

consumers was likely to be deceived by the challenged ads. But Complaint Counsel offered little

evidence on that issue, and none that satisfies their burden. Professor Novemskys survey is

flawed many times over and cannot be relied on to draw any conclusions about how consumers

responded to the challenged ads, which none of the participants saw. And the consumer

complaints that Complaint Counsel introduced actually disprove their claim, showing that only a

miniscule fraction of consumers complained. Those complaintswhich amount to almost

nothing considering Intuits customer base, how many times the ads were shown, and complaint

rates in other casesreflect that the challenged ads in fact did not deceive reasonable consumers. 

Intuit, meanwhile, has offered an abundance of evidence, including data that shed light on 

consumers expectations and experiences, consumer testing, and reliable expert surveys, all of

which confirms that no significant minority of reasonable consumers was likely deceived. 

III. COMPLAINT COUNSEL FAILED TO PROVE MATERIALITY

Complaint Counsel have not satisfied their burden to prove that any alleged deception 

was material, that is, likely to affect a consumers choice of or conduct regarding a product,

98 
 

 

 

PUBLIC

FEDERAL TRADE COMMISSION | OFFICE OF THE SECRETARY | FILED 05/23/2023 OSCAR NO. 607741 -PAGE Page 108 of 137 * PUBLIC * 

FTC Policy Statement on Deception, 103 F.T.C. at 182. Complaint Counsel have not argued that

any misleading claim allegedly conveyed by the challenged ads was likely to influence

consumers purchasing decisions, Apotex Inc. v. Acorda Therapeutics, Inc., 823 F.3d 51, 68 (2d 

Cir. 2016), nor offered any evidence that any such claim was likely to affect other relevant

conduct. In fact, reflecting Complaint Counsels substantial neglect of the materiality element, 

their own expert testified at trial that he was unaware that the legal definition of deception

includes materiality. PFF ¶780. 

Complaint Counsels theory is 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 cant be remedied by subsequent disclosures, PFF

¶781. That is untenable for multiple reasons. 

To start, consumers do not make a decision about whether to purchase a TurboTax 

product until they have completed their tax return and are about to file it, which occurs after

seeing the TurboTax website, any upgrade screens encountered within a TurboTax product (if

any), and a final summary of the products they are purchasing. PFF ¶782. As Complaint

Counsel themselves have conceded, consumers learn that TurboTax Free Edition is not free for

them prior to purchasing a paid version of TurboTax. PFF ¶782. And as Professor Golder

explained, consumers have not already made their purchase decision when they arrive at the

TurboTax website, in part because the selection of a particular tax-filing method entails a highinvolvement purchase process, which consumers approach with care and consideration and 

in a thoughtful, deliberative manner. PFF ¶782. Complaint Counsel have offered no evidence

proving that advertisements seen before arriving on the TurboTax website are material to 

consumers ultimate purchasing decision. PFF ¶779. 

99 
 

 

 

 

 

PUBLIC

FEDERAL TRADE COMMISSION | OFFICE OF THE SECRETARY | FILED 05/23/2023 OSCAR NO. 607741 -PAGE Page 109 of 137 * PUBLIC * 

Moreover, Complaint Counsel did not establish that any allegedly misleading claim in the

challenged ads was responsible for driving consumers to the TurboTax website, let alone driving 

consumers to pay for TurboTax. To the contrary, unrebutted evidence indicates that when the

challenged ads invited consumers to visit the TurboTax website, they were just reinforcing what

consumers [were] inclined to do anyway. PFF ¶784. And other unrebutted evidence shows that

consumers do not rely solely (or even primarily) on ads when making decisions to try or

purchase a tax-preparation product, but rather consult multiple sources, including friends and 

family, internet research, third-party reviews, and the IRS website. See PFF ¶¶505, 786-787. 

Consistent with that, Dr. Hausers Disclosure Efficacy Survey demonstrates that revising the

challenged ads as Complaint Counsel suggest would not have made consumers any less likely to

consider or start using TurboTax Free Edition. PFF ¶¶736-742. That undermines any notion that

claims in the ads were material. 

Complaint Counsels theory independently fails because even if the claims allegedly 

conveyed by Intuits ads did drive consumers to the TurboTax website, that does not establish 

materiality. As noted, Complaint Counsels expert conceded that it took only a few seconds to 

access the TurboTax website, and that once on the website it took only five to ten seconds to 

encounter full eligibility information for free TurboTax offers. PFF ¶790; accord PFF ¶793 

2022) (Complaint Counsel admitted that consumers with income-related disqualifiers  are

likely informed that they do not qualify for Free Edition as quickly as 10 minutes into the

process of completing their tax returns). As Mr. Rubin confirmed, moreover, this full product

information was always accessible before consumers ha[d] to input their name or any other

personal information. PFF ¶791. And for consumers who did input information to start the

process of filing a return, they typically encountered a required upgrade screen, if at all, within 

100 
 

 

 

 

 

PUBLIC

FEDERAL TRADE COMMISSION | OFFICE OF THE SECRETARY | FILED 05/23/2023 OSCAR NO. 607741 -PAGE Page 110 of 137 * PUBLIC * 

just 30 minutes. PFF ¶¶792-793. And even that 30-minute figure likely overstates how long 

consumers were actively using the website. PFF ¶668. Complaint Counsel have failed to 

explainas was their burden, see 16 C.F.R. §3.43(a)how, under these circumstances, merely 

causing consumers to visit the TurboTax website establishes materiality as to statements in the

challenged ads. PFF ¶794. 

Finally, contrary to Complaint Counsels contention (Pretrial Br. 35 n.47), the challenged 

ads are not presumptively material simply because they mention the word free. PFF ¶795. 

Even assuming that claims about the cost of a product are presumptively material, the products

advertised in the challenged ads were in fact free to everyone who qualified to use them. PFF

¶795; see also PFF ¶¶69, 109-110. Thus, any alleged misrepresentation was not about the cost of

the advertised product, but rather about its qualifications, i.e., about particular consumers ability 

to use the product (at the accurately advertised free price). PFF ¶795. Complaint Counsel have

cited no case applying a presumption of materiality in these circumstances, which starkly 

distinguish this case from the one Complaint Counsel highlighted at trial (see Evans (FTC) Tr. 

29). In that caseBook-of-the-Month Club, 48 F.T.C. 1297 (1952), affd, 202 F.2d 486 (2d Cir. 

1953)a free claim was deemed material because the product was not actually free; rather,

consumers had to either assume the obligation to purchase at least four books  over a period 

of a year, or subsequently pay[] for the so-called free book, id. at 1299. Here, TurboTaxs

free SKUs are genuinely free; it is impossible to pay to use them. This distinction is yet another

reason Complaint Counsel fail to prove materiality. 

IV. NO CEASE-AND-DESIST ORDER IS WARRANTED

The sole remedy available here is an order requiring [Intuit] to cease and desist from

using any act or practice found to be deceptive. 15 U.S.C. §45(b). Complaint Counsel bore the

burden of satisfy[ing] the court that [such] relief is needed. United States v. W. T. Grant Co., 

101 
 

 

 

 

 

 

 

PUBLIC

FEDERAL TRADE COMMISSION | OFFICE OF THE SECRETARY | FILED 05/23/2023 OSCAR NO. 607741 -PAGE Page 111 of 137 * PUBLIC * 

345 U.S. 629, 633 (1953), quoted in Benco Dental Supply Co., 2019 WL 5419393, at *75 (F.T.C. 

Oct. 15, 2019). But a cease-and-desist order is appropriate only to prevent illegal practices in 

the future, FTC v. Ruberoid Co., 343 U.S. 470, 473 (1952), not to fasten liability on [Intuit] for

past conduct, FTC v. Cement Institute, 333 U.S. 683, 706 (1948). In other words, the

Commission is not empowered to issue a cease and desist order as punishment for past

offenses. Coro, Inc. v. FTC, 338 F.2d 149, 153 (1st Cir. 1964). Accordingly, Complaint

Counsel had to prove the existence of some cognizable danger of recurrent violation, something 

more than the mere possibility which serves to keep the case alive. W. T. Grant, 345 U.S. at

633 (emphasis added). They did not do so, and hence even if they had established that the

challenged ads were deceptive, no cease-and-desist order would be warranted. 

Complaint Counsels failure to show that any cease-and-desist order should issue is not

surprising, given that they presented no evidence on the question. In fact, Complaint Counsel

expressly acknowledged that Intuits current ads were not at issue, PFF ¶336, leaving Intuits

past conduct (which as just described is not what this proceeding is designed to act against) the

sole focus of Complaint Counsels basis for liability. Intuit on the other hand presented ample

evidenceincluding the May 2022 Consent Order with state attorneys general and the changes

made to Intuits marketing practices for Tax Year 2022 to comply with that orderto support its

avowal that it is not attempting and does not intend to violate the law, New Standard 

Publishing Co. v. FTC, 194 F.2d 181, 183 (4th Cir. 1952). That evidence confirms the

unavailability of prospective relief here. 

A. Complaint Counsel Do Not Challenge Intuits Current Ads And Unrebutted

Evidence Shows That Those Ads Are Not Deceptive

The parties agree that Intuits current free product ads are relevant to remedy. PFF

¶803. But Complaint Counsel offered no evidence that those ads are deceptive. Their fact

102 
 

PUBLIC

FEDERAL TRADE COMMISSION | OFFICE OF THE SECRETARY | FILED 05/23/2023 OSCAR NO. 607741 -PAGE Page 112 of 137 * PUBLIC * 

witnesses, Ms. Shiller and Ms. Baburek, did not testify about Intuits current free TurboTax ads. 

See PFF ¶336. And Complaint Counsels primary evidence of deception, Professor Novemskys

(flawed) survey, tested consumers perception as of March 2022, before the current ads ever ran. 

See supra p.29. Accordingly, his survey offers no support for an argument that TurboTaxs

current free ads are deceiving anyone. 

In contrast, Intuit offered unrebutted evidence that those ads are not deceptive. Ms. 

Ryan, for example, testified at length about consumer copy testing from Tax Year 2022 (the

TY22 Test), which established 

. PFF ¶¶702-

713. That testing focused on 

. PFF ¶¶702, 705. Given that makeup, Ms. Ryan expected that

. PFF ¶706. 

Yet

. PFF ¶¶709-711. If Tax Year 2022 ads deceived consumers into 

believing that TurboTax is free or free for them, the

. 

PFF ¶¶709-711. But . PFF ¶709. The

 PFF ¶¶695, 709-711, 804. That disparity likewise

shows that consumers were not deceived into believing TurboTax was free for them.

103 
 

 

 

 

PUBLIC

FEDERAL TRADE COMMISSION | OFFICE OF THE SECRETARY | FILED 05/23/2023 OSCAR NO. 607741 -PAGE Page 113 of 137 * PUBLIC * 

Intuits Tax Year 2022 copy testing confirmed what the ads themselves make plain:

None are deceptive. Not only do these ads have the same features that rendered past ads nondeceptiveidentifying the specific SKU being advertised, noting that the offer is only for simple

tax returns, and informing consumers that more information can be found on the TurboTax 

website, supra §D.2but those features have also been enhanced. For example, Tax Year 2022 

ads now include written and verbal disclosures for all video ads longer than eight seconds. PFF

¶¶337-338, 343, 825. The verbal disclosures say that the offer is only available to consumers

filing a simple return and tell consumers to see if you qualify at turbotax.com. PFF ¶¶338, 

343. Furthermore, Intuit has increased the size of the written disclosures in many of its ads. A

screenshot from one such disclosure is shown below. PFF ¶340. The reference to simple returns

is impossible to miss. 

B. Intuits Free TurboTax Advertising Is Already Subject To Injunctive Terms

Enforceable By Every State And The District Of Columbia That Prohibit All

The Conduct Complaint Counsel Seek To Enjoin

Because Intuits current ads are not deceptive, Complaint Counsel had to find something 

else to establish the cognizable danger of recurrent violation that is required for prospective

104 
 

 

 

 

PUBLIC

FEDERAL TRADE COMMISSION | OFFICE OF THE SECRETARY | FILED 05/23/2023 OSCAR NO. 607741 -PAGE Page 114 of 137 * PUBLIC * 

relief, W. T. Grant, 345 U.S. at 633. They did not do sobecause, as explained in the balance of

this Part IV, any potentially deceptive conduct that might hypothetically occur in the future is

already enjoined, and Intuit is committed to clarity and transparency in its advertising. 

Since June 2022, Intuit has been required by the legally binding Consent Order to comply 

with certain restrictions on its advertising. See PFF ¶809. Those restrictions preclude Intuit

from engaging in the advertising practices challenged here. For example, the Free, Free, Free

television adswhich Intuit had already voluntarily pulled from the airwaves, PFF ¶¶7-8are

specifically barred by the Consent Order. See PFF ¶213. Additional provisions of the order

require Clear and Conspicuous disclosures in Intuits advertising, including written disclosures

that not all taxpayers qualify and, in all video ads 8 seconds or longer, corollary verbal

disclosures. See PFF ¶¶809-819. 

The Consent Orders injunctive provisions moot this case. [A] suit becomes moot[]

when the issues presented are no longer live or the parties lack a legally cognizable interest in 

the outcome. Chafin v. Chafin, 568 U.S. 165, 172 (2013). That is the case here. Because of

the Consent Order, [t]here is nothing for this court to enjoin. Wold v. Robart, 2018 WL 

1135396, at *5 (E.D. Wis. Feb. 28, 2018). Certainly Complaint Counsel have offered no basis

for the Court to have a reasonable expectation that the complained-of conduct could recur even 

though the Consent Order bars it. South Carolina State Board of Dentistry, 138 F.T.C. 229, 262 

(2004) (citing W. T. Grant, 345 U.S. at 632); see also Already, LLC v. Nike, Inc., 568 U.S. 85, 97 

(2013) (holding a case moot in light of a covenant promising no future violations of the type

alleged); iMortgage Services, LLC v. Louisiana Real Estate Appraisers Board, 2023 WL 

2254528, at *2-5 (M.D. La. Feb. 27, 2023) (deeming a case moot because any relief would be

105 
 

 

 

 

PUBLIC

FEDERAL TRADE COMMISSION | OFFICE OF THE SECRETARY | FILED 05/23/2023 OSCAR NO. 607741 -PAGE Page 115 of 137 * PUBLIC * 

redundant with an FTC consent decree, and the prospect of FTC enforcement preclude[d] a

reasonable expectation that the wrong w[ould] be repeated). 

Intuit, by contrast, offered evidence foreclosing any reasonable expectation of the alleged 

deception occurring in the future. Ms. Ryan testified, for example, that since the Consent Order

took effect, Intuit has complied with its restrictions on TurboTax marketing, and that Intuit will

continue to do so in the future. PFF ¶¶823-828. Since the Consent Order took effect, she

explained (and indeed since before it took effect), Intuit has not run the Free, Free, Free video 

advertisements or any other video ads that similarly repeat the word free. PFF ¶824. Intuit has

likewise complied with the Consent Orders provisions governing display adsand in fact had 

included qualifying language and hyperlinks directing consumers to a TurboTax webpage that

details the qualifications of the free TurboTax product or offer, as required by the Consent Order, 

prior to that order taking effect. PFF ¶¶826-827. 

Mr. Rubins testimony about Intuits compliance policies and procedures further

confirms that there is no cognizable danger of Intuit engaging in any deceptive advertising in the

future. As he explained, Intuit has charged an internal team with ensuring that all TurboTax 

advertising continues to comply with the Consent Order, PFF ¶821. Intuit also prioritizes

employee training for compliance with that order, such that all the relevant Intuit employees

receive clear and comprehensive training on its provisions. PFF ¶822. 

In light of this testimony, and the lack of any contrary evidence, the notion that Intuit

might fail to comply with the Consent Orders terms in the future is pure speculation. That does

not avoid mootness. See iMortgage Services, 2023 WL 2254528, at *4. And even if the Consent

Order did not fully moot this case, it would assuredly provide[] [powerful] assurances of

[Intuits] future compliance with the FTC Act, eradicating any cognizable danger of future

106 
 

PUBLIC

FEDERAL TRADE COMMISSION | OFFICE OF THE SECRETARY | FILED 05/23/2023 OSCAR NO. 607741 -PAGE Page 116 of 137 * PUBLIC * 

violations and precluding prospective relief. TRW v. FTC, 647 F.2d 942, 954 (9th Cir. 1981). 

As noted, the Consent Order is part of a binding California-court judgment, enforceable against

Intuit by the 51 attorneys general. Under these circumstances, there is no reasonable

expectation of future violations of the sort challenged in this proceeding, W. T. Grant, 345 U.S. 

at 633. 

C. Intuit Is, And Has Always Been, Committed To Clarity In Its Free (And

Other) Advertising 

Unrebutted trial testimony demonstrates that Intuit both never intended to run deceptive

ads and has a genuine and resolute intent to comply with the law in the future, Benco Dental, 

2019 WL 5419393, at *75. This lack of both past and future intent to deceive cuts strongly 

against entry of a cease-and-desist order, see id. at *75, particularly given that the challenged ads

are substantially outdated, FTC v. Merchandise Services Direct, LLC, 2013 WL 4094394, at

*3 (E.D. Wash. Aug. 13, 2013); see also id. (denying the FTCs motion for a temporary 

restraining order because the Commission relied on stale information). At the very least,

because deliberateness of the violation is a factor used by the Commission to determine the

proper scope of relief, Stouffer Foods Corp., 118 F.T.C. 746, 811 (1994), the lack of deceptive

intent here means that capacious order Complaint Counsel are seeking cannot issue. 

Complaint Counsel admitted before trial that there is no evidence Intuit intentionally tried 

to deceive consumers, PFF ¶175. Unrebutted trial testimony confirmed that admission, as to 

both the past and the future. Intuit always intended that the challenged ads communicate that the

particular free TurboTax SKU being advertised was free and only available for consumers who

qualify. 

Mr. Johnsons testimony, for instance, set forth Intuits foundational values, long-term

goals, and strategies for the TurboTax brandvalues, goals, and strategies that are inconsistent

107 
 

 

 

PUBLIC

FEDERAL TRADE COMMISSION | OFFICE OF THE SECRETARY | FILED 05/23/2023 OSCAR NO. 607741 -PAGE Page 117 of 137 * PUBLIC * 

with deception. See PFF ¶¶30, 33-38, 174, 850-852; supra pp.30-31. He explained that if at any 

time during his Intuit tenure he had believed that any Intuit advertisement was misleading

consumers in the manner suggested by Complaint Counsel, Intuit would have stopped the ad

and pulled it from circulation. PFF ¶174. He also explained if the goal is (as in Intuits case) to 

build future growth and have a healthy franchise, managing a brand (such as TurboTax)

requires executives to have a high  say:do ratioi.e., to communicate clearly and 

believabl[y] with consumers, and to match their words to their actions. PFF ¶167. Consistent

with that ethos, Intuit gave its ad agencies mandatory instructions to drive absolute clarity 

around who  TurboTax Free Edition was meant for. PFF ¶¶172-173. That commitment to 

clarity demonstrates that Intuit never intended to engage in deceptive advertising, providing

assurance that it will not engage in deceptive advertising in the future.

The evidence further shows that Intuit is committed to clarity in its advertisement going 

forward and its intent not to engage in any deceptive conduct. Like Mr. Johnson, Ms. Ryan and 

Mr. Rubin testified that they did not intend to deceive consumers through TurboTax advertising 

and that they would stop distributing ads if there was any indication that they were doing so. See

PFF ¶¶169-174, 176, 769, 860, 870; supra pp.31-32, 47-48 (discussing this testimony). Ms. 

Ryan and Mr. Rubin also both testified that running deceptive ads would undermine Intuits

business interests. PFF ¶¶73, 647. Ms. Ryan further testified that Intuit stopped running its

Free, Free, Free ads in Tax Year 2021 voluntarily after a March 2022 meeting with Chair Khan 

in which concerns about that ad campaign were expressed. PFF ¶¶7-8. Intuit did so, she

explained, even though the process of removing the ad campaign from circulation was

extremely disruptive and required Intuit to work[] across multiple agencies and across

hundreds of contacts across [its] media partners. PFF ¶8. Both Ms. Ryan and Mr. Rubin also 

108 
 

 

 

 

PUBLIC

FEDERAL TRADE COMMISSION | OFFICE OF THE SECRETARY | FILED 05/23/2023 OSCAR NO. 607741 -PAGE Page 118 of 137 * PUBLIC * 

testified about Intuits efforts to aim as much of its TurboTax Free Edition advertising as

possible at a target audience of those who qualify, i.e., taxpayers who have simple U.S. returns

and thus qualify to use Free Edition. PFF ¶¶191-198. 

Moreover, Ms. Ryan explained how Intuit has voluntarily improved its TurboTax ads

over the years, with the goal of communicating even more clearly than before the qualifications

of free TurboTax products and offers. See PFF ¶¶353, 363. Starting in Tax Year 2019, for

instance, Intuit updated the title card of its video ads to display the TurboTax Free Edition logo 

and increased the font size and contrast of the written disclosures. PFF ¶357. And in Tax Year

2022, Intuit added voiceovers in both video and display ads stating that the free offers were for

simple tax returns only and inviting consumers to see if you qualify at TurboTax.com. PFF

¶338. Those improvements exemplify Intuit matching its words with its actions, reinforcing the

companys stated intent to be clear with consumers. 

Consistent with all this fact testimony, one of Intuits expert witnesses, Mr. Deal, testified 

that Intuits business strategy and economic incentives are inconsistent with using deception to 

earn revenue in the short term. As he explained, because the tax-preparation industry has a

largely fixed set of consumers, and because of the very low marginal costs and [the] annual

requirement to file taxes, Intuit derives far greater value from exceeding customer expectations

and earning repeat business than it does from one-off transactions. PFF ¶¶39, 89. Courts have

likewise recognized the the importance of reputation and brand in driving consumer behavior in 

purchasing in the online tax-preparation industry. H&R Block, 833 F.Supp.2d at 75. Those

incentives provide further still assurance that Intuit will not engage in deceptive advertising in 

the future.

109 
 

 

 

 

PUBLIC

FEDERAL TRADE COMMISSION | OFFICE OF THE SECRETARY | FILED 05/23/2023 OSCAR NO. 607741 -PAGE Page 119 of 137 * PUBLIC * 

This lack of deceptive intent, both past and future, weighs against a cease-and-desist

order. [T]he character of the past violations should be considered when assessing the ongoing 

risk of future abuse. W. T. Grant, 345 U.S. at 643. To that end, courts have relied on an alleged 

wrongdoers intent to break the law as a justification for forward-looking relief. E.g., FTC v. 

Walmart Inc., 2023 WL 2646741, at *21 (N.D. Ill. Mar. 27, 2023); FTC v. Shkreli, 581 

F.Supp.3d 579, 639-640 (S.D.N.Y. 2022). Here, that bad intent is entirely missing. In fact, the

only evidence regarding intent is that Intuits intentions were to be fully honest and transparent. 

As explained in this section, the same values and economic self-interest that safeguarded against

Intuit engaging in deliberate deception in the past will continue to militate against deception 

going forward. These facts provide yet another basis to deny a cease-and-desist order. 

D. The Proposed Order Would Be Harmful To Consumers

Finally, Complaint Counsels proposed remedy here is unwarranted because it would 

harm consumers and would not further the public interest. See ECM Biofilms, Inc., 159 F.T.C. 

276, 646 (2015) (the absence of any proof of consumer harm  militates against a broad 

remedial order). 

As an initial matter, Complaint Counsel have offered no evidence that the proposed order

would help consumers better understand free TurboTax advertising. PFF ¶832. And Dr. 

Hausers Disclosure Efficacy Survey shows that consumers decisions to start filing their taxes

with Free Edition were unaffected by more detailed disclosures. PFF ¶772. As he explained, 

moreover, many of Complaint Counsels desired changes have already been implemented in 

Intuits Tax Year 2022 advertising. PFF ¶728. Because the relief sought would not improve

consumers understanding of Intuits advertising, and would be largely redundant of Intuits

current advertising practices, no such relief is warranted. 

110 
 

PUBLIC

FEDERAL TRADE COMMISSION | OFFICE OF THE SECRETARY | FILED 05/23/2023 OSCAR NO. 607741 -PAGE Page 120 of 137 * PUBLIC * 

But beyond being unhelpful, Complaint Counsels proposed relief would affirmatively 

harm consumers. The proposed order Complaint Counsel sought in connection with their motion 

for summary decision seemingly would have required Intuit to include the content of its simple

returns pop-up (including the specific tax situations covered and not covered by Free Edition) in 

all free TurboTax advertisements. PFF ¶839. But explaining all of Free Editions

qualifications in a 30-second television admuch less the shorter ads typical of platforms like

YouTube or TikTokwould likely constitute information overload. PFF ¶¶138, 383, 834-

835; supra pp.55, 67. Even Professor Novemsky agreed that he would not try to give consumers

lots of or complicated information in a 30-second television ad, for fear that consumers would 

not process the information effectively and would be left more confused than informed. PFF

¶841. Professor Golder made a similar point, explaining that including all of Free Editions

qualifications in an ad (i.e., the 157 words found on the TurboTax websites simple returns

pop-up, see supra p.23) and stating that the majority of taxpayers do not qualify to use Free

Edition would likely decrease consumers engagement with the ads. PFF ¶¶842, 844. 

Intuits fact witnesses offered similar testimony, drawing on their years of marketing 

experience to explain that consumers would be worse off if Intuit added overly detailed or

technical qualifying language to TurboTax ads. PFF ¶833. Mr. Johnson, for example, explained 

that includ[ing] each and every detail regarding various tax situations covered by free

TurboTax offers would be incomprehensible to consumers, in part because the font would 

need to be so small, and that doing so would be inconsistent with consumer behavior and 

expectations because consumers were not yet looking for that information. PFF ¶846. Ms. 

Ryan likewise testified that including the full eligibility details for free TurboTax products in ads

would be impractical because they simply would not fit, and that consumers would not even 

111 
 

 

PUBLIC

FEDERAL TRADE COMMISSION | OFFICE OF THE SECRETARY | FILED 05/23/2023 OSCAR NO. 607741 -PAGE Page 121 of 137 * PUBLIC * 

know which tax forms they use. PFF ¶846. Mr. Rubin, meanwhile, stated that providing more

detailed qualifications, such as identifying specific tax forms, would be more confusing for

consumers because tax forms can change year to year, and it is difficult to understand lengthy 

qualifications in a short ad. PFF ¶846. Complaint Counsel did nothing to rebut any of that

testimony. 

Complaint Counsels proposed remedy could also exacerbate the skepticism that

reasonable consumers already bring to offers for free products or services, again resulting in 

fewer consumers filing for free. As Professor Golder explained, telling consumers that most

taxpayers cannot file for free with TurboTax (as Complaint Counsels proposed order would 

require, PFF ¶831), would cause them to assumein many instances, incorrectlythat they do 

not qualify for the free TurboTax product. PFF ¶843. That too would result in harm rather than 

any benefit to consumers. 

Finally, Complaint Counsels proposed order would run afoul of the constitution and 

must be rejected on that basis too. While under current law, the government may compel certain 

disclosures in commercial speech, it may do so only if the speech at issue is noncontroversial

and not unjustified or unduly burdensome. National Institute of Family & Life Advocates v. 

Becerra, 138 S.Ct. 2361, 2372 (2018). As discussed, Complaint Counsels proposed order, and 

in particular its requirement to affirmatively disclose in all advertisements that a majority of

taxpayers do not qualify to use TurboTax Free Edition fails both these elements. The parties

vigorously dispute whether the entire taxpayer population is the appropriate metric for measuring 

TurboTax Free Editions qualifications. And imposing such a requirement on TurboTax to the

exclusion of its competitors would, on this record, be unjustifiedcertainly Complaint Counsel

made no attempt to justify it. The Supreme Court made clear in NIFLA that a government112 
 

 

 

 

 

 

 

 

PUBLIC

FEDERAL TRADE COMMISSION | OFFICE OF THE SECRETARY | FILED 05/23/2023 OSCAR NO. 607741 -PAGE Page 122 of 137 * PUBLIC * 

compelled disclosure that imposes an undue burden fails for that reason alone. American 

Beverage Assn v. City & County of San Francisco, 916 F.3d 749, 757 (9th Cir. 2019). The

disclosures sought by Complaint Counsel impose such a burden and should be rejected for that

reason too. 

V. THE STATUTE OF LIMITATIONS AND LACHES BAR CONSIDERATION OF OUTDATED

ADVERTISEMENTS

A. Statute Of Limitations

The outdated advertisements from Tax Years 2014-2017 that Complaint Counsel

challenge cannot support the relief sought for the additional reason that any claims related to 

those ads are untimely. Section 5 claims are subject to a three-year statute of limitations. Thus, 

any advertisements that last ran before January 5, 2019three years before the date of the tolling 

agreement in this case, PFF ¶5may not be considered.*

Although section 5 does not include an express statute of limitations, it is wrong to 

assume that this absence means Congress intended that there be no time limit on actions.

DelCostello v. International Brotherhood of Teamsters, 462 U.S. 151, 158 (1983). Instead, 

where there is no federal statute of limitations expressly applicable, courts borrow the most

suitable statute or other rule of timeliness from some other source. Id. Typically, that source is

the most closely analogous statute of limitations under state law. Id. But a related federal law

may also supply the limitations period. See Reed v. United Transportation Union, 488 U.S. 319, 

324 (1989) (citing cases). Here, analogous state and federal laws both point to a three-year

statute of limitations. See Cal. Civ. Code §1783; D.C. Code §28-3904; N.Y. C.P.L.R. §214(2);

15 U.S.C. §57b(d). 

* A full list of challenged advertisements (identified in Complaint Counsels pretrial brief) that

ran before the three-year statute of limitations period is provided in Appendix A to this brief. 

113 
 

PUBLIC

FEDERAL TRADE COMMISSION | OFFICE OF THE SECRETARY | FILED 05/23/2023 OSCAR NO. 607741 -PAGE Page 123 of 137 * PUBLIC * 

Complaint Counsel, however, have cited various cases for the proposition that section 5 

is not subject to any statute of limitations. See Complaint Counsels Opp. to Intuit Mot. In 

Limine To Exclude Outdated Advertisements at 3 (Fed. 24, 2023). But those decisions all fail[]

to mention the widely recognized rule from DelCostello, an oversight for which at least one

court has already faulted the FTC, FTC v. Centro National Corp., 2014 WL 7525697, at *7-8 

(S.D. Fla. Dec. 10, 2014). Complaint Counsel have also argued that federal equitable claims

never borrow statutes of limitations. See Complaint Counsels Opp. to Intuit Mot. In Limine To 

Exclude Outdated Advertisements at 3-4. But the Supreme Court has never so held (Complaint

Counsel cite to dicta from distinguishable cases, infra p.115), and appellate precedent is to the

contrary, see, e.g., Held v. Manufacturers Hanover Leasing Corp., 912 F.2d 1197, 1200-1201 

(10th Cir. 1990) (borrowing a state-law statute of limitations for an equitable cause of action 

under the Employee Retirement Income Security Act). Moreover, the tolling agreement Intuit

entered into with Complaint Counsel belies any notion that section 5 claims lack a statute of

limitations; if there were no limitations period, the tolling agreement Complaint Counsel itself

sought and then espoused would not have been necessary. 

Complaint Counsels assertion that the FTC Act has no statute of limitations, when 

combined with their position that laches is unavailable, see infra Part V.B, presents significant

constitutional problems. The Supreme Court has long used particularly forceful language in 

emphasizing the importance of time limits on government enforcement actions. Gabelli v. SEC, 

568 U.S. 442, 452 (2013). Over two centuries ago, for example, Chief Justice Marshall

explained that it would be utterly repugnant to the genius of our laws if government

enforcement actions could be brought at any distance of time, noting that [i]n a country where

not even treason can be prosecuted after a lapse of three years, it could scarcely be supposed that

114 
 

 

 

 

PUBLIC

FEDERAL TRADE COMMISSION | OFFICE OF THE SECRETARY | FILED 05/23/2023 OSCAR NO. 607741 -PAGE Page 124 of 137 * PUBLIC * 

an individual would remain forever liable for a far lesser offense. Adams v. Woods, 6 U.S. (2 

Cranch) 336, 342 (1805). Consistent with those views, the Supreme Court later declared that

time limits are an almost indispensable element of fairness. Rothensies v. Electric Storage

Battery Co., 329 U.S. 296, 301 (1946). Complaint Counsels position that no time limitations

apply cannot be reconciled with this principle. Because courts do not lightly assume that

Congress intended to infringe constitutionally protected liberties, Edward J. DeBartolo Corp. v. 

Florida Gulf Coast Building & Construction Trades Council, 485 U.S. 568, 575 (1988), this

Court should not hold that Congress intended to exempt section 5 from the general rule that

where no statute of limitations is expressly stated, an analogous statute of limitation (here, three

years) is borrowed. 

The due-process imperative to apply some time limit also undermines Complaint

Counsels argument that borrowing a statute of limitations is inappropriate in federal equitable

cases. To support that proposition, Complaint Counsel rely on dicta from DelCostello that

merely paraphrased an earlier decision explaining that statutes of limitations should not be

imported to actions where laches applies instead. See DelCostello, 462 U.S. at 162 

(paraphrasing Holmberg v. Armbrecht, 327 U.S. 392, 396 (1946)). If Complaint Counsel are

right that laches does not apply, then their argument that a statute of limitations cannot be

borrowed in equitable cases is even more unsustainable. 

B. Laches

The doctrine of laches independently bars any attempt to punish Intuit for outdated ads of

which the FTC has long been aware. To prevail on a laches defense, a defendant must show

unreasonable, prejudicial delay by the plaintiff in commencing suit. Petrella v. MetroGoldwyn-Mayer, Inc., 572 U.S. 663, 667 (2014). Here, the FTC began investigating Intuit in 

2019 (over four years after the first ad Complaint Counsel challenge ran, in the Super Bowl no 

115 
 

 

 

 

 

PUBLIC

FEDERAL TRADE COMMISSION | OFFICE OF THE SECRETARY | FILED 05/23/2023 OSCAR NO. 607741 -PAGE Page 125 of 137 * PUBLIC * 

less), PFF ¶1; see PFF ¶214, but then allowed nearly three whole tax seasons to pass before

initiating an action in 2022, PFF ¶6. This delay occurred, moreover, even thoughas Judge

Breyer observed at the 2022 preliminary-injunction hearingthe conduct in question was

known to the FTC for a considerable period of time, PFF ¶14. It is inequitable to penalize

Intuit for outdated ads when the FTC waited years and years, across three different

administrations, before filing this case. 

Complaint Counsel have not argued that the circumstances here do not satisfy the

requirements for applying laches. Instead, they assert that laches is categorically unavailable

against the federal government. See Complaint Counsels Pretrial Br. 49. They are wrong. 

Laches applies against the governmentincluding the FTCwhen it unreasonably delays

bringing an enforcement action to the defendants detriment. See FTC v. DirecTV, Inc., 2015 

WL 9268119, at *3 (N.D. Cal. Dec. 21, 2015); FTC v. Hang-Ups Art Enterprises, Inc., 1995 WL 

914179, at *4 (C.D. Cal. Sept. 27, 1995); see also United States v. Lindberg Corp., 882 F.2d 

1158, 1164 (7th Cir. 1989). Indeed, the D.C. Circuitciting cases involving the federal

governmentrecently rejected an argument that sovereigns are exempt from laches. New

York v. Meta Platforms, Inc., 66 F.4th 288, 296 (D.C. Cir. 2023) (citing Supreme Court cases). 

VI. THIS PROCEEDING IS UNCONSTITUTIONAL

Even if none of the foregoing arguments had merit, Complaint Counsel could not prevail

because this proceeding is unconstitutional, in four ways. First, the FTCs administrative

processes violate due process. Second, the separation of powers both requires FTC

commissioners and judges to be subject to direct presidential control and prohibits combining the

functions of all three branches of government in a single agency directly accountable to no one. 

Third, the non-delegation doctrine bars Intuit from being subjected to an administrative

proceeding based on a black-box system in which the Commission has the unchecked legislative

116 
 

 

 

 

PUBLIC

FEDERAL TRADE COMMISSION | OFFICE OF THE SECRETARY | FILED 05/23/2023 OSCAR NO. 607741 -PAGE Page 126 of 137 * PUBLIC * 

authority to allocate some cases to agency adjudication and others to federal court. Fourth, 

because the Commission itself is not neutral, Intuit has been denied its due-process right to a

final administrative determination by a neutral arbiter. 

To the extent this Court cannot grant relief on any of these constitutional arguments, 

Intuit presents each to preserve them for further review. 

A. The FTCs Administrative Process Violates Due Process

Due process requires a fair opportunity to rebut the Governments factual assertions

before a neutral decisionmaker. Hamdi v. Rumsfeld, 542 U.S. 507, 533 (2004) (plurality). And 

an unconstitutional potential for bias inevitably exists when the same person serves as both 

accuser and adjudicator in a case. Williams v. Pennsylvania, 579 U.S. 1, 8 (2016). For

example, the Supreme Court has held that a Pennsylvania Supreme Court justice who had served 

as a prosecutor could not constitutionally adjudicate an appeal involving a defendant against

whom the justice had, while a prosecutor, authorized the death penalty to be sought. Id. at 4. 

Similarly, here, the FTC authorized the filing of the complaint against Intuit and, at the same

time, will ultimately decide the merits of that complaint. The potential for bias in such 

circumstances is unmistakable. 

The commissioners tendency to overwhelmingly agree with their  agencys

decisions, Axon Enterprise, Inc. v. FTC, 143 S.Ct. 890, 907 n.1 (2023) (Thomas, J., 

concurring), provides strong evidence of a biased institutional process that is incompatible with 

basic tenets of due process. See Hamdi, 542 U.S. at 533 (plurality). As a former commissioner

remarked in 2015, the fact that the Commission has ruled in favor of FTC staff and found 

liability in 100 percent of cases where the Commissioners voted out a complaintregardless

of the decision by the administrative law judge (ALJ)is a strong sign of an unhealthy and 

biased institutional process. PFF ¶934. That extraordinary win rate remains in place. As the

117 
 

 

 

 

 

PUBLIC

FEDERAL TRADE COMMISSION | OFFICE OF THE SECRETARY | FILED 05/23/2023 OSCAR NO. 607741 -PAGE Page 127 of 137 * PUBLIC * 

Ninth Circuit colorfully observed two years ago, the FTC has not lost a single case [in 

administrative proceedings] in the past quarter-century. Even the 1972 Miami Dolphins would 

envy that type of record. Axon Enterprise, Inc. v. FTC, 986 F.3d 1173, 1187 (9th Cir. 2021), 

revd, 143 S.Ct. 890 (2023). Indeed, just last month, the Commission again (dubiously) reversed 

this Court to rule in favor of itself. See Order of the Commission, Illumina, Inc. & GRAIL, Inc., 

No. 9401 (F.T.C. Apr. 3, 2023). 

In defending the validity of this biased forum, Complaint Counsel have cited (Pretrial Br. 

50) Withrow v. Larkin, 421 U.S. 35 (1975), which held that the combination of a federal

agencys investigative and adjudicative functions, without more, does not violate due process,

id. at 58. To the extent Withrow would require rejection of the argument here, Intuit preserves

for further review that it was wrongly decided. But Intuit submits that Withrow does not require

rejection of the argument here, because the Court there recognized that special facts and 

circumstances present in the case may demonstrate that the risk of unfairness is intolerably 

high. Id. The FTCs concentration of governmental power, coupled with the copious evidence

of case-specific prejudgment in this matter discussed below, makes plain that the serious risk of

unfairness here is intolerablein fact, that risk has materialized into reality.

The due-process problem with the FTCs adjudication is amplified by the fact that this

case implicates Intuits right to liberty, see Liquormart, Inc. v. Rhode Island, 517 U.S. 484, 522 

(1996) (Thomas, J., concurring in part) (describing advertising as integral to liberty), 

which is a private right[], Axon, 143 S.Ct. at 907 (Thomas, J., concurring); see also id.

(defining core private rights as rights to life, liberty, and property). [W]hen private rights

are at stake, full Article III adjudication is likely required, because empowering entities that

are not courts of competent jurisdiction to deprive citizens of core private rights would violate

118 
 

 

 

PUBLIC

FEDERAL TRADE COMMISSION | OFFICE OF THE SECRETARY | FILED 05/23/2023 OSCAR NO. 607741 -PAGE Page 128 of 137 * PUBLIC * 

due process. Id. at 907, 910. For Intuits private rights to be adjudicated by a biased forum

offends due process. 

B. The FTCs Structure Violates The Separation Of Powers

The FTCs structure contravenes article II of the Constitution because the commissioners

and the FTCs ALJ are each impermissibly insulated from presidential removal. See Seila Law

v. CFPB, 140 S.Ct. 2183, 2191 (2020); Free Enterprise Fund v. Public Co. Accounting 

Oversight Board, 561 U.S. 477, 484 (2010). 

Article II vests [t]he executive Power  in a President.. And a core feature of this

executive power is the presidents ability to supervise and remove those who wield executive

power on his behalf. Seila Law, 140 S.Ct. at 2191. Yet FTC commissioners, who exercise

executive power, see Morrison v. Olson, 487 U.S. 654, 690 n.28 (1988), are shielded from atwill presidential removal, see 15 U.S.C. §41. That is unconstitutional. 

Although the Supreme Court upheld the FTCs removal structure in Humphreys

Executor v. United States, 295 U.S. 602 (1935), the Court has repeatedly undermined that case in 

the subsequent 85-plus years. Seila Law, for example, repudiated almost every aspect of

Humphreys Executor, 140 S.Ct. at 2212 (Thomas, J., concurring in part and dissenting in part), 

by refusing to apply the decision to an agency with only a slightly different structure to the 1935 

FTC, id. at 2206. Indeed, two justices in Seila Law went so far as to call Humphreys Executor

a direct threat to our constitutional structure that should be overruled. Id. at 2211-2212 

(Thomas, J., concurring in part and dissenting in part). Intuit preserves that argument for further

review.

The FTCs structure also unconstitutionally shields ALJs from removal, in derogation of

the separation-of-powers principle that the president may not be restricted in his ability to 

remove a principal officer, who is in turn restricted in his ability to remove an inferior officer,

119 
 

 

 

PUBLIC

FEDERAL TRADE COMMISSION | OFFICE OF THE SECRETARY | FILED 05/23/2023 OSCAR NO. 607741 -PAGE Page 129 of 137 * PUBLIC * 

Free Enterprise Fund, 561 U.S. at 484. FTC ALJs are insulated from executive oversight by 

both 5 U.S.C. §7521(a), which provides that [a]n action may be taken against an [ALJ]  only 

for good cause established and determined by the Merit Systems Protection Board [MSPB] on 

the record after opportunity for hearing before the Board, and 5 U.S.C. §1202(d), which 

provides that MSPB members are removable by the President only for inefficiency, neglect of

duty, or malfeasance in office. ALJs accordingly enjoy two layers of protection from the

president. As Free Enterprise Fund makes plain, that structure violates Article II. See 561 U.S. 

at 492, 496. Indeed, relying on Free Enterprise Fund and Lucia v. SEC, 138 S.Ct. 2044, 2053 

(2018), the Fifth Circuit recently held that ALJs at the Securities and Exchange Commission 

(SEC), who do not differ in any material respect from FTC ALJs, are officers who cannot

constitutionally enjoy two layers of removal protection. Jarkesy v. SEC, 34 F.4th 446, 464 (5th 

Cir. 2022), petition for cert. filed, No. 22-859 (U.S. Mar. 8, 2023). 

Complaint Counsel have argued, however (Pretrial Br. 51-52), that any defect in the

presidents power to remove commissioners (Complaint Counsel do not make this argument as

to ALJs) is harmless because the commissioners have been properly appointed. That is wrong. 

Proper appointment does not salvage the actions of an officer with unconstitutional removal

protection if that protection contributes to any harm inflicted. See Collins v. Yellen, 141 S.Ct. 

1761, 1789 (2021). That is the situation here. If the commissioners (and ALJs for that matter)

were accountable to the president, the prospect that Intuit would be subjected to a skewed 

proceeding would be significantly reduced, as the president could ensure that the commissioners

decided this case based on the evidence rather than their desire to vindicate their initial decisions

to initiate the investigation and file a complaint. Indeed, it seems unlikely that commissioners

would rule for themselves in every instance (overturning ALJ decisions as necessary) if the

120 
 

 

 

 

 

 

PUBLIC

FEDERAL TRADE COMMISSION | OFFICE OF THE SECRETARY | FILED 05/23/2023 OSCAR NO. 607741 -PAGE Page 130 of 137 * PUBLIC * 

threat of removal required them to set aside their prior determination that a suit was appropriate

and assess the evidence offered during the administrative proceeding. 

C. Congress Unconstitutionally Delegated Legislative Power To The FTC

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. Oceanic Steam Navigation Co v. Stranahan, 214 U.S. 320, 339 (1909). 

Yet Congress has given the FTC plenary authority to make that choiceand has done so without

providing any intelligible principle (indeed, any principle at all)to guide or constrain that

choice. See 15 U.S.C. §§45(b), 53(b). That constitutes an unconstitutional delegation of

legislative authority. See generally Gundy v. United States, 139 S.Ct. 2116, 2123 (2019)

(plurality); Panama Refining Co. v. Ryan, 293 U.S. 388, 430 (1935). 

In fact, the Fifth Circuit recently held that Congress violated the non-delegation doctrine

when it gave the SEC authority to bring securities fraud actions  within the agency instead of

in an Article III court whenever the SEC in its unfettered discretion decides to do so. Jarkesy, 

34 F.4th at 461. As with the SEC, Congress has said nothing at all about how the FTC should 

exercise its exclusive authority and absolute discretion to decide whether to bring  

enforcement actions within the agency instead of in an Article III court. Id. at 462. Such a

total absence of guidance is impermissible under the Constitution. Id. 

Complaint Counsels rejoinder, that the choice of forum is merely an exercise of

prosecutorial discretion (Complaint Counsels Pretrial Br. 51), is unavailing. As Jarkesy

explained, [t]hat position reflects a misunderstanding of the nature of the delegated power

because Congress did not  merely give the [agency] the power to decide whether to bring 

enforcement actions in the first place; rather, Congress effectively gave the [agency] the power

to decide which defendants should receive certain legal processes (those accompanying Article

121 
 

 

 

 

 

 

PUBLIC

FEDERAL TRADE COMMISSION | OFFICE OF THE SECRETARY | FILED 05/23/2023 OSCAR NO. 607741 -PAGE Page 131 of 137 * PUBLIC * 

III proceedings) and which should not. 34 F.4th at 462. Such a decision, the court explained,

is a power that Congress uniquely possesses. Id. 

The history of this case underscores why the FTCs unchecked discretion to determine

the forum in which it will proceedand, therefore, which legal processes will governis so 

problematic. Before this proceeding began in earnest, Complaint Counsel unsuccessfully sought

relief in federal court against the same ads challenged here. Having failed there, Complaint

Counsel are wielding core legislative authority to get a second bite at the apple in an 

administrative proceeding. By the looks of it, the principle guiding Complaint Counsels

decision to proceed here is simply that, having been rejected in the district court, this forum

would hopefully prove friendlier. Such considerations should not, and under the Constitution 

cannot, play a role. 

D. Intuits Due-Process Rights Have Been Violated By The Reality Or

Appearance Of Prejudgment

The Due Process Clause prohibits an agency from adjudg[ing]  a particular case in 

advance of hearing it. Fast Food Workers Committee v. NLRB, 31 F.4th 807, 815 (D.C. Cir. 

2022). To determine whether due process has been violated through prejudgment, courts ask

whether a disinterested observer may conclude that the agency has in some measure prejudged 

the case. Id. Here, the comments and actions of the FTC Chair would lead a disinterested 

observer to conclude that the ultimate determination of the merits improperly move[d] in 

predestined grooves. Cinderella Career & Finishing Schools, Inc. v. FTC, 425 F.2d 583, 589-

590 (D.C. Cir. 1970). 

In particular, actions and statements from Chair Khan demonstrate that one member of

the body that will be the ultimate administrative decisionmaker here may have prejudged the

case. On March 29, 2022, while the Part 3 wall was up and the Commission was thus required 

122 
 

 

 

 

PUBLIC

FEDERAL TRADE COMMISSION | OFFICE OF THE SECRETARY | FILED 05/23/2023 OSCAR NO. 607741 -PAGE Page 132 of 137 * PUBLIC * 

to play the role of neutral adjudicator, Chair Khan tweeted about Intuits deceptive Turbotax 

free filing campaign and the need for an immediate halt to Intuits deceptive ads. PFF ¶932. 

That tweet, importantly, is not the same as the agencys issuance of the press release included in 

the tweet: By re-tweeting the content of the press release from her Twitter account, the Chair

amplified and indicated her support for that content, including the proposition that Intuits ads

were deceptive. Chair Khans tweet is no different for these purposes from a federal judge retweeting a plaintiffs press release announcing a pending case. That would clearly violate the

admonition that judge[s] should not make public comment on the merits of a matter pending or

impending in any court. Code of Conduct for U.S. Judges Canon 3(A)(6) (eff. Mar. 12, 2019). 

Not one month later (with the Part 3 wall still in place), Chair Khan reinforced the

perception of prejudgment by once again publicly suggesting, this time in a widely watched 

interview, that Intuit had engaged in law-breaking. PFF ¶933. Although she described the

purported conduct as alleged, a reasonable observer can see the bias inherent in identifying 

Intuit as her chosen exemplar of an unqualified lawbreaker against whom it was incredibly 

important for the Commission to take prompt action. PFF ¶933. She made these public

statements before Intuit had an opportunity to defend itself, moreover, and at a time when FTC

rules (and broader due-process principles) required her to remainand appear to remain

neutral. Again, a federal judge could not sit for a public interview and point to the conduct at

issue in a case pending before that same judge as conduct necessitating an enforcement action. 

See United States v. Cooley, 1 F.3d 985, 990 (10th Cir. 1993) (judicial recusal required where a

judge told the press that abortion protesters who he had enjoined from blocking a clinic, but who 

intended to disregard his order, were breaking the law). The rules for Chair Khan are no 

123 
 

 

 

 

 

 

 

PUBLIC

FEDERAL TRADE COMMISSION | OFFICE OF THE SECRETARY | FILED 05/23/2023 OSCAR NO. 607741 -PAGE Page 133 of 137 * PUBLIC * 

different. See Intel Corp., 149 F.T.C. 1548, 1152 (2010) (reasoning that the standard governing 

judicial disqualification applies where Commissioners act[] as judges). 

Courts have invalidated FTC actions tainted by statements far less problematic. For

example, in American Cyanamid Co. v. FTC, 363 F.2d 757 (6th Cir. 1966), Chair Paul Rand 

Dixon had, when previously serving as counsel to a Senate subcommittee, investigated similar

facts and issues in preparing a report that criticized companies facing antitrust scrutiny, id. at

763, 767. On appeal, the Sixth Circuit invalidated an FTC antitrust order in which Chair Dixon 

had participated, explaining that FTC proceedings must be attended, not only with every 

element of fairness but with the very appearance of complete fairness, and that [w]herever

there may be reasonable suspicion of unfairness, it is best to disqualify. Id. at 767. 

The D.C. Circuit embraced this reasoning in Cinderella. There, Chair Dixon made public

statements appearing to condemn particular industries as engaging in deceptive practices while a

matter concerning a member of that industry was pending before the FTC. 425 F.2d at 584-585. 

The FTC subsequently found that company liable. In vacating, the court explained that

commissioners may not make speeches which give the appearance that the case has been 

prejudged. Id. at 590. Such conduct ha[s] the effect of entrenching a Commissioner in a

position which he had publicly stated, making it difficult, if not impossible, for him to reach a

different conclusion in the event he deems it necessary to do so after consideration of the

record. Id. 

Like Chair Dixon, Chair Khan made public statements asserting that a company being 

investigated (and then sued) by the Commission broke the law. She publicly embraced the

conclusion that Intuit engaged in deceptive conduct, and reinforced that perception when, 

weeks later at an academic conference, she named Intuit as an example of alleged law124 
 

 

 

 

PUBLIC

FEDERAL TRADE COMMISSION | OFFICE OF THE SECRETARY | FILED 05/23/2023 OSCAR NO. 607741 -PAGE Page 134 of 137 * PUBLIC * 

breaking that it was incredibly important for the FTC to stop. PFF ¶933. A disinterested 

observer would reasonably conclude that Chair Khan meant what she said: that she already 

considered Intuits ads deceptive and would vote to halt them. And even if Chair Khan reached a

different conclusion after hearing Intuits side of the story, her prior comments would likely 

have the effect of entrenching [her] in [the] position which [s]he had publicly stated,

Cinderella, 425 F.2d at 590. As a result, and as a result of the Chairs decision not to recuse

herself from this matter after making such public statements, Intuit has been deprived of its right

to a hearing with every element of fairness and with the appearance of complete fairness.

American Cyanamid, 363 F.2d at 767. That violates due process. 

CONCLUSION

The Court should find in Intuits favor and dismiss the Complaint. 

Dated: May 23, 2023 Respectfully submitted, 

 By:/s/ David Z. Gringer

Howard M. Shapiro David Z. Gringer

Jonathan E. Paikin Wilmer Cutler Pickering 

Jennifer Milici Hale and Dorr LLP

Derek A. Woodman 7 World Trade Center

Wilmer Cutler Pickering 250 Greenwich St. 

 Hale and Dorr LLP New York, NY 10007 

2100 Pennsylvania Ave NW Telephone: (212) 230-8800 

Washington, DC 20037 Facsimile: (212) 230-8888 

Telephone: (202) 663-6000 David.Gringer@wilmerhale.com

Facsimile: (202) 663-6363 

Howard.Shapiro@wilmerhale.com Attorneys for Intuit Inc.

Jonathan.Paikin@wilmerhale.com

Jennifer.Milici@wilmerhale.com

Derek.Woodman@wilmerhale.com

125 
 

PUBLIC

FEDERAL TRADE COMMISSION | OFFICE OF THE SECRETARY | FILED 05/23/2023 OSCAR NO. 607741 -PAGE Page 135 of 137 * PUBLIC * 

APPENDIX A
PUBLIC

Appendix A to Intuit's Post Trial Brief

FEDERAL TRADE COMMISSION | OFFICE OF THE SECRETARY | FILED 05/23/2023 OSCAR NO. 607741 -PAGE Page 136 of 137 * PUBLIC * 

No.

Exhibit

Number Description Tax Year

1 GX 321 2015 Super Bowl ad Boston Tea Party (adage.com) 60 second Video (Video) TY14

2 RX 200 TY14 TV Advertisement re: Boston Tea Party TY14

3 GX 323 2016 Super Bowl ad "Never A Sellout (adage.com) 30 second Video (Video) TY15

4 GX 388 TY16 Email Absolutely Free (Adamson Depo) TY16

5 GX 389 TY16 Email Absolute Zero (Adamson Depo) TY16

6 GX 390 TY16 Email Refund in Pocket Free (Adamson Depo) TY16

7 RX 024 Screenshot of TY16 TurboTax Homepage TY16

8 GX 324 30 second Fish [INTUIT FFA FTC 000169116] TY17

9 GX 325 15 second Fish ad [INTUIT FFA FTC 000528212] TY17

10 GX 344 15 second "Guzman" ad (INTUIT FFA FTC 000528209) TY17

11 GX 345 30 second "Cruise" ad (INTUIT FFA FTC 000169117) TY17

12 GX 346 15 second "Baby" ad (INTUIT FFA FTC 000528210) TY17

13 GX 347 45 second "Anthem Launch" ad (INTUIT FFA FTC 000528211) TY17

14 GX 371 TY17 "File Your Taxes for $0" (Bansal Depo) TY17

15 GX 374 TY17 Email Absolute Zero (Schulte Depo) TY17

16 GX 375 TY17 Email Absolute Zero (Schulte Depo) TY17

17 GX 376 TY17 Email File Free Today (Schulte Depo) TY17

18 GX 668 1208_GUZMAN_15_01_16_18_540pm.mov TY17

19 GX 774 15s turbotax absolute zero baby 1672974.mp4 TY17

20 GX 775 15s turbotax absolute zero guzman featuring luis guzmn 1689586.mp4 TY17

21 GX 776 29s turbotax absolute zero fish 1682138.mp4 TY17

22 GX 777 29s turbotax cruise 1672400.mp4 TY17

23 GX 785 30s turbotax pez espada spanish 1673035.mp4 TY17

24 GX 786 45s turbotax absolute zero hey at least your taxes are free 1671922.mp4 TY17

25 RX 023 Screenshot of TY17 TurboTax Homepage TY17

26 RX 025 Screenshot of TY17 TurboTax Website Pop Up Disclosure Screen TY17

1
 

 

 

 

 

 

 

 

PUBLIC

FEDERAL TRADE COMMISSION | OFFICE OF THE SECRETARY | FILED 05/23/2023 OSCAR NO. 607741 -PAGE Page 137 of 137 * PUBLIC * 

CERTIFICATE OF SERVICE

I hereby certify that on May 23, 2023, I caused the foregoing document to be filed 

electronically using the FTCs E-Filing system, which will send notification of such filing to:

April Tabor The Honorable D. Michael Chappell

Office of the Secretary 600 Pennsylvania Ave., NW, Rm. H-110

Federal Trade Commission Washington, DC 20580 

600 Pennsylvania Avenue, NW

Suite CC-5610 

Washington, DC 20580 

ElectronicFilings@ftc.gov

I further certify that on May 23, 2023, I caused the foregoing document to be served via

email to:

Roberto Anguizola

Federal Trade Commission 

600 Pennsylvania Avenue, NW

Washington, DC 20580 

Email: ranguizola@ftc.gov 

Tel: (202) 326-3284

James Evans

Federal Trade Commission 

600 Pennsylvania Avenue, NW

Washington, DC 20580 

Email: jevans1@ftc.gov 

Tel: (202) 326-2026

Counsel Supporting the Complaint

April Tabor

Office of the Secretary

Federal Trade Commission 

600 Pennsylvania Avenue, NW

Suite CC-5610 

Washington, DC 20580 

ElectronicFilings@ftc.gov

Dated: May 23, 2023 

Rebecca Plett

Federal Trade Commission 

600 Pennsylvania Avenue, NW

Washington, DC 20580 

Email: rplett@ftc.gov 

Tel: (202) 326-3664

Sara Tonnesen 

Federal Trade Commission 

600 Pennsylvania Avenue, NW

Washington, DC 20580 

Email: stonnesen@ftc.gov 

Tel: (202) 326-2879

The Honorable D. Michael Chappell

Administrative Law Judge

600 Pennsylvania Ave., NW, Rm. H-110

Washington, DC 20580 

Respectfully submitted, 

/s/ Derek Woodman 

Derek Woodman 

Counsel for Intuit Inc.