FEDERAL TRADE COMMISSION | OFFICE OF THE SECRETARY | FILED 09/26/2023 OSCAR NO. 608656 -PAGE Page 1 of 101 * PUBLIC * 

UNITED STATES OF AMERICA 

BEFORE THE FEDERAL TRADE COMMISSION 

COMMISSIONERS: Lina M. Khan, Chair 

Rebecca Kelly Slaughter 

Alvaro M. Bedoya 

In the Matter of:

 Docket No. 9408 Intuit Inc., a corporation. 

RESPONDENT INTUIT INC.’S APPEAL BRIEF 

HOWARD M. SHAPIRO 

JONATHAN E. PAIKIN 

JENNIFER MILICI 

DANIEL S. VOLCHOK 

DEREK A. WOODMAN 

WILMER CUTLER PICKERING 

HALE AND DORR LLP 

2100 Pennsylvania Avenue NW 

Washington, DC 20037 

(202) 663-6000 

Howard.Shapiro@wilmerhale.com 

Jonathan.Paikin@wilmerhale.com 

Jennifer.Milici@wilmerhale.com 

Daniel.Volchok@wilmerhale.com 

Derek.Woodman@wilmerhale.com 

September 26, 2023 

DAVID Z. GRINGER 

WILMER CUTLER PICKERING 

HALE AND DORR LLP 

7 World Trade Center 

250 Greenwich Street 

New York, NY 10007 

(212) 230-8800 

David.Gringer@wilmerhale.com 

PUBLIC
FEDERAL TRADE COMMISSION | OFFICE OF THE SECRETARY | FILED 09/26/2023 OSCAR NO. 608656 -PAGE Page 2 of 101 * PUBLIC * 

TABLE OF CONTENTS 

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

STATEMENT................................................................................................................................. 2 

I. Factual Background ............................................................................................................ 2 

A. Intuit And Its TurboTax Products........................................................................... 2 

B. Intuit’s Free Advertising......................................................................................... 3 

C. Consent Order ......................................................................................................... 8 

D. Procedural History .................................................................................................. 9 

II. Summary Of Argument..................................................................................................... 10 

QUESTIONS PRESENTED......................................................................................................... 12 

ARGUMENT................................................................................................................................ 12 

I. The Initial Decision’s Ruling That The Challenged Ads Were Deceptive Is 

Deeply Flawed .................................................................................................................. 12 

A. Under A Proper Analysis, None Of The Challenged Ads Was Deceptive ........... 12 

1. The challenged ads conveyed that specific TurboTax products 

were free to consumers who qualified ...................................................... 12 

2. Reasonable consumers were not likely to be misled ................................ 17 

a. Reasonable consumers expect free tax-preparation offers 

to be qualified ............................................................................... 17 

b. Extrinsic evidence confirms that reasonable consumers 

were not likely to be deceived ...................................................... 21 

c. The ALJ erroneously relied on Professor Novemsky’s 

survey............................................................................................ 29 

B. The Initial Decision Is Premised On Fundamental Legal Errors .......................... 33 

1. The ALJ imposed a heightened disclosure requirement that is 

both unsupported and infeasible ............................................................... 33 

2. The ALJ improperly analyzed the ads’ components piecemeal and 

from a subjective viewpoint...................................................................... 35 

i 

PUBLIC
 

FEDERAL TRADE COMMISSION | OFFICE OF THE SECRETARY | FILED 09/26/2023 OSCAR NO. 608656 -PAGE Page 3 of 101 * PUBLIC * 

3. The ALJ relied on a doctrine that has no place here and involves 

disregarding detailed information readily available to consumers ........... 37 

II. There Is No Basis For The Proposed Cease-And-Desist Order ........................................ 40 

A. No Cease-And-Desist Order Is Warranted ........................................................... 40 

B. The ALJ’s Order Is Inappropriate......................................................................... 43 

III. The Proceeding Is Unconstitutional And Untimely .......................................................... 47 

A. Constitutionality.................................................................................................... 47 

B. Timeliness............................................................................................................. 49 

CONCLUSION ............................................................................................................................. 50 

ii 

PUBLIC
PUBLIC FEDERAL TRADE COMMISSION | OFFICE OF THE SECRETARY | FILED 09/26/2023 OSCAR NO. 608656 -PAGE Page 4 of 101 * PUBLIC * 

TABLE OF AUTHORITIES 

Page(s) 

CASES 

44 Liquormart, Inc. v. Rhode Island, 517 U.S. 484 (1996) ...........................................................48 

American Beverage Ass’n v. City & County of San Francisco, 916 F.3d 749 (9th 

Adams v. Woods, 6 U.S. 336 (1805) ..............................................................................................50 

Cir. 2019) ...........................................................................................................................46 

American Home Products Corp. v. FTC, 695 F.2d 681 (3d Cir. 1982)...................................35, 45 

Axon Enterprise v. FTC, 598 U.S. 175 (2023)...............................................................................48 

Bell v. Publix Super Markets, Inc., 982 F.3d 468 (7th Cir. 2020) .................................................38 

Book-of-the-Month Club, 48 F.T.C. 1297 (1952) ..........................................................................33 

DelCostello v. International Brotherhood of Teamsters, 462 U.S. 151 (1983).............................50 

Dinan v. Sandisk LLC, 2019 WL 2327923 (N.D. Cal. May 31, 2019)..........................................17 

Ebner v. Fresh, Inc., 838 F.3d 958 (9th Cir. 2016) .................................................................19, 37 

ECM Biofilms, 160 F.T.C. 652 (2015)...........................................................................................22 

Encyclopaedia Britannica, Inc., 87 F.T.C. 421 (1976)..................................................................39 

Estrella-Rosales v. Taco Bell Corp., 2020 WL 1685617 (D.N.J. Apr. 7, 2020) .....................14, 17 

Executive Benefits Insurance Agency v. Arkison, 573 U.S. 25 (2014) ..........................................48 

Fast Food Workers Committee v. NLRB, 31 F.4th 807 (D.C. Cir. 2022)......................................48 

FCC v. Fox Television Stations, 567 U.S. 239 (2012)...................................................................14 

Fedders Corp. v. FTC, 529 F.2d 1398 (2d Cir. 1976) ...................................................................45 

Fish v. Kobach, 309 F.Supp.3d 1048 (D. Kan. 2018), aff’d, 957 F.3d 1105 (10th 

Cir. 2020) ...........................................................................................................................31 

FTC v. Cement Institute, 333 U.S. 683 (1948) ..............................................................................40 

FTC v. DirecTV, 2015 WL 9268119 (N.D. Cal. Dec. 21, 2015) ...................................................50 

iii 
FEDERAL TRADE COMMISSION | OFFICE OF THE SECRETARY | FILED 09/26/2023 OSCAR NO. 608656 -PAGE Page 5 of 101 * PUBLIC * 

FTC v. DirecTV, 2018 WL 3911196 (N.D. Cal. Aug. 16, 2018).......................................14, 19, 39 

FTC v. Grant Connect, LLC, 763 F.3d 1094 (9th Cir. 2014) ........................................................45 

FTC v. Mary Carter Paint Co., 382 U.S. 46 (1965)......................................................................33 

FTC v. Ruberoid Co., 343 U.S. 470 (1952) ...................................................................................40 

Grolier, Inc., 99 F.T.C. 379 (1982) ...............................................................................................39 

Gundy v. United States, 139 S.Ct. 2116 (2019).............................................................................49 

Harris v. Las Vegas Sands L.L.C., 2013 WL 5291142 (C.D. Cal. Aug. 16, 2013).......................39 

Humphrey’s Executor v. United States, 295 U.S. 602 (1935) ...........................................47, 48, 49 

In re Autozone, Inc., 2016 WL 4208200 (N.D. Cal. Aug. 10, 2016), aff’d, 789 

F.App’x 9 (9th Cir. 2019) ..................................................................................................32 

Jarkesy v. SEC, 34 F.4th 446 (5th Cir. 2022), cert. granted, 143 S.Ct. 2688 (2023)....................49 

LabMD, Inc. v. FTC, 894 F.3d 1221 (11th Cir. 2018).............................................................43, 44 

Little Caesars Enterprises v. Smith, 895 F.Supp.884 (E.D. Mich. 1995)......................................17 

Marksberry v. FCA US LLC, 606 F.Supp.3d 1075 (D. Kan. 2022)...............................................19 

Moore v. Trader Joe’s Co., 4 F.4th 874 (9th Cir. 2021)................................................................38 

National Institute of Family & Life Advocates v. Becerra, 138 S.Ct. 2361 (2018).......................46 

Petrella v. Metro-Goldwyn-Mayer, Inc., 572 U.S. 663 (2014)......................................................50 

Resort Car Rental Systems, Inc. v. FTC, 518 F.2d 962 (9th Cir. 1975) (per curiam)....................38 

Richards v. Direct Energy Services, LLC, 915 F.3d 88 (2d Cir. 2019) .........................................36 

Rothensies v. Electric Storage Battery Co., 329 U.S. 296 (1946) .................................................50 

S.C. Johnson & Son, Inc. v. Clorox Co., 241 F.3d 232 (2d Cir. 2001)....................................35, 36 

Seila Law v. CFPB, 140 S.Ct. 2183 (2020) .............................................................................48, 49 

Southern States Distributing Co., 1973 WL 165073 (F.T.C. 1973) ..............................................28 

Southwest Sunsites, Inc. v. FTC, 785 F.2d 1431 (9th Cir. 1986)...................................................17 

Telebrands Corp., 140 F.T.C. 278 (2005) ...................................................................13, 15, 22, 25 

TRW, Inc. v. FTC, 647 F.2d 942 (9th Cir. 1981) ...........................................................................42 

iv 

PUBLIC
 

FEDERAL TRADE COMMISSION | OFFICE OF THE SECRETARY | FILED 09/26/2023 OSCAR NO. 608656 -PAGE Page 6 of 101 * PUBLIC * 

United States v. H&R Block, 833 F.Supp.2d 36 (D.D.C. 2011) ..............................................18, 42 

United States v. W. T. Grant Co., 345 U.S. 629 (1953).....................................................40, 45, 46 

Washington v. Hyatt Hotels Corp., 2020 WL 3058118 (N.D. Ill. June 9, 2020)...........................39 

Williams v. Pennsylvania, 579 U.S. 1 (2016) ................................................................................47 

Withrow v. Larkin, 421 U.S. 35 (1975)..........................................................................................47 

Wold v. Robart, 2018 WL 1135396 (E.D. Wis. Feb. 28, 2018).....................................................42 

Wright v. Farouk Systems, Inc., 701 F.3d 907 (11th Cir. 2012) ....................................................46 

STATUTES AND REGULATIONS 

16 C.F.R. 

§2.41...................................................................................................................................44 

§3.43(a) ..............................................................................................................................34 

§3.43(d)(1) .........................................................................................................................26 

§251.1.................................................................................................................................21 

15 U.S.C. 

§41......................................................................................................................................47 

§45(b).................................................................................................................................49 

§53(b).................................................................................................................................49 

§57b(d)...............................................................................................................................50 

Cal. Civ. Code §1783.....................................................................................................................50 

OTHER AUTHORITIES 

FTC Policy Statement on Deception, 103 F.T.C. 174 (Oct. 14, 1983), appended to 

Cliffdale Associates, 103 F.T.C. 110 (1984)..............................................12, 14, 15, 17, 35 

S. Rep. 63-597 (1914)....................................................................................................................47 

v 

PUBLIC
FEDERAL TRADE COMMISSION | OFFICE OF THE SECRETARY | FILED 09/26/2023 OSCAR NO. 608656 -PAGE Page 7 of 101 * PUBLIC * 

GLOSSARY OF ABBREVIATIONS 

Abbreviation Meaning 

ALJ Administrative Law Judge 

CC Complaint Counsel 

CCB Complaint Counsel’s Post-Trial Brief 

CCPC Complaint Counsel’s Proposed Conclusions of Law 

CCPF Complaint Counsel’s Proposed Findings of Fact 

CRM customer relationship management 

ID Initial Decision 

IDF Initial Decision Finding of Fact 

RB Respondent’s Post-Trial Brief 

RPC Respondent’s Proposed Conclusions of Law 

RPF Respondent’s Proposed Findings of Fact 

RRB Respondent’s Post-Trial Reply Brief 

RRC Respondent’s Replies to Complaint Counsel’s Proposed Conclusions of Law 

RRF Respondent’s Replies to Complaint Counsel’s Proposed Findings of Fact 

TY Tax Year 

vi 

PUBLIC
FEDERAL TRADE COMMISSION | OFFICE OF THE SECRETARY | FILED 09/26/2023 OSCAR NO. 608656 -PAGE Page 8 of 101 * PUBLIC * 

INTRODUCTION 

Intuit offers online tax-filing products for free to qualifying consumers. Each year, tens 

of millions of consumers use these products to file their taxes for free. Promoting free tax filing 

benefits consumers, and there is nothing deceptive about advertising free products as free. Yet 

the ALJ here deemed Intuit’s free-product ads deceptive because not everyone can use the free 

products, and he proposed a sweeping remedial order. Both the deception finding and the order 

are based on an unrealistic—and unrecognizable—legal regime. The Commission should reject 

both. 

As to the finding: None of the challenged ads was deceptive. Most stated that a 

particular product was free—a statement that was indisputably true; no consumer ever paid a 

penny to use any of the products in question. Each ad also communicated that only consumers 

who qualified could use the advertised free product, often by stating that the particular offer was 

for “simple tax returns only,” a commonly used and understood term in the industry. And the 

ads invited consumers to see if they qualified on the TurboTax website (or linked to the website), 

reinforcing that not everyone qualified, and telling consumers how to find out whether they did. 

Considered together, as the law requires, these elements of the challenged ads effectively and 

accurately communicated the qualifications for free TurboTax offers. 

Extrinsic evidence further forecloses any finding that the challenged ads were likely to 

mislead a substantial minority of reasonable consumers. Survey evidence, for example, revealed 

that consumers found the phrase “simple tax returns” easy to understand, and consumers testified 

that they correctly understood it. Moreover, copy testing and market research showed that 

roughly the same percentage of consumers who believed they could file for free actually could. 

And three Intuit executives—with decades of combined experience—along with four experts 

testified that reasonable consumers would not have been misled by the challenged ads. 

1 

PUBLIC
FEDERAL TRADE COMMISSION | OFFICE OF THE SECRETARY | FILED 09/26/2023 OSCAR NO. 608656 -PAGE Page 9 of 101 * PUBLIC * 

The ALJ nevertheless found that Intuit’s ads were deceptive, but only by disregarding or 

improperly construing evidence. The finding also rests on a heightened standard for advertising 

free products that is unsupported, unworkable, and in fact counterproductive. It flows from an 

impermissibly piecemeal analysis of the ads’ disclosures, rather than the holistic analysis the law 

requires. And it anachronistically applies a legal doctrine (“deceptive door opener”) that makes 

no sense—and has never been applied—in the e-commerce context. 

Even if there were any sustainable deception finding here, no cease-and-desist order 

would be warranted. A consent order with all 51 state attorneys general that already requires 

changes to Intuit’s advertising precludes the need for such an order. The proposed order, 

moreover, unconstitutionally compels speech and impermissibly encompasses Intuit products 

never claimed to have been marketed unlawfully. It also would all but prohibit Intuit from 

advertising free products in places where consumers increasingly consume content and lower the 

number of taxpayers who file for free. 

STATEMENT 

I. FACTUAL BACKGROUND 

A. Intuit And Its TurboTax Products 

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

innovative technology. RPF ¶29. “TurboTax” is the brand name for Intuit’s online taxpreparation products. IDF ¶6. The TurboTax brand encompasses three tiers of products offering 

different levels of assistance. IDF ¶11. Each tier includes four different products, or “SKUs.” 

IDF ¶15. The various SKUs cover tax situations of differing complexity. IDF ¶10. 

The most basic SKU in each tier—including the do-it-yourself product Free Edition—is 

free for consumers with “simple tax returns.” RPF ¶67. (Other consumers cannot pay to use 

Free Edition or any other free TurboTax product; those products are simply unavailable to such 

2 

PUBLIC
FEDERAL TRADE COMMISSION | OFFICE OF THE SECRETARY | FILED 09/26/2023 OSCAR NO. 608656 -PAGE Page 10 of 101 * PUBLIC * 

consumers.) Simple tax returns are those filed on Form 1040 with no attached schedules. RPF 

¶¶121, 124. The phrase “simple tax return” is ubiquitous and well-understood. RPF ¶¶119, 122, 

141-142. Most taxpayers who file online have simple returns and thus qualify to file for free 

using a TurboTax product. RPF ¶¶127-128. 

Intuit hopes consumers with simple returns will use TurboTax to file for free, have a 

good experience doing so, and thereby develop life-long relationships with Intuit, meaning they 

stay with Intuit as their tax situations grow more complex. RPF ¶83. Intuit recognizes that 

creating a mistaken expectation amongst consumers who do not qualify to file for free that they 

do would cause consumers to both leave TurboTax and share their dissatisfaction with others. 

RPF ¶134. That would erode trust in the TurboTax brand and lower customer retention, hurting 

Intuit’s business. RPF ¶96. 

B. Intuit’s Free-Product Advertising 

The challenged ads for free TurboTax products were just that—ads for free products. 

They expressly stated that the free offers were available only to consumers with “simple tax 

returns” (or similar language). RPF ¶322. Nearly all the ads also identified the specific SKU or 

offer that was free. RPF ¶¶215, 250-251, 266, 281, 294. And they invited consumers to visit (or 

linked directly to) the TurboTax website, TurboTax.com, to “see if they qualify.” RPF ¶¶215, 

253, 269, 284, 294. No ad said that everyone could use the free TurboTax product, or made 

unqualified claims that TurboTax is free. 

The challenged ads ran on many advertising channels, including television, online 

display, paid-search, email, and radio. IDF ¶¶48, 203. Example ads are shown below. Each 

communicated, as explained, both that the free product being offered was available only to 

qualified consumers—those with “simple tax returns”—and that additional information was 

available (“see if you qualify”) at TurboTax.com. 

3 

PUBLIC
FEDERAL TRADE COMMISSION | OFFICE OF THE SECRETARY | FILED 09/26/2023 OSCAR NO. 608656 -PAGE Page 11 of 101 * PUBLIC * 

RPF ¶216 (television). 

RPF ¶249 (non-video display). 

4 

PUBLIC
FEDERAL TRADE COMMISSION | OFFICE OF THE SECRETARY | FILED 09/26/2023 OSCAR NO. 608656 -PAGE Page 12 of 101 * PUBLIC * 

RPF ¶268 (paid search). 

5 

PUBLIC
FEDERAL TRADE COMMISSION | OFFICE OF THE SECRETARY | FILED 09/26/2023 OSCAR NO. 608656 -PAGE Page 13 of 101 * PUBLIC * 

RPF ¶282 (email). 

Each year, Intuit has taken steps to make its ads clearer, both because it believes that that 

is the right thing to do and because doing so is in its business interest. RPF ¶¶33, 39, 363. In the 

ad-development process—which can take up to nine months for one ad—several stakeholders 

review every TurboTax ad to ensure that none is misleading. RPF ¶¶163, 165. If anyone 

believes a draft ad is misleading, it is either revised to eliminate the problem or is not publicly 

6 

PUBLIC
PUBLIC FEDERAL TRADE COMMISSION | OFFICE OF THE SECRETARY | FILED 09/26/2023 OSCAR NO. 608656 -PAGE Page 14 of 101 * PUBLIC * 

released. RPF ¶168. At no point did Intuit’s leaders believe that consumers were misled by any 

free-SKU ad; if they had, they would have immediately pulled the ads from circulation. RPF 

¶¶167-177. 

The TurboTax website prominently featured in Intuit’s free-SKU advertising includes 

detailed disclosures regarding eligibility for free offers, including color-contrasted hyperlinks 

explaining that the free offer is for simple returns only and telling consumers to click to “see if 

you qualify.” RPF ¶¶364-452. A screenshot from the TY 2022 TurboTax homepage is below. 

RPF ¶375. When consumers clicked any hyperlinked disclosure on any page of the website, a 

pop-up screen provided “detailed information about the tax situations covered by” the free 

SKUs. RPF ¶379. A screenshot of the website’s disclosures is below. 

7 
FEDERAL TRADE COMMISSION | OFFICE OF THE SECRETARY | FILED 09/26/2023 OSCAR NO. 608656 -PAGE Page 15 of 101 * PUBLIC * 

RPF ¶380. 

C. Consent Order 

Last year, the attorneys general of all 50 states and Washington, D.C. agreed to a consent 

order relating to Intuit’s free-product advertising. RPF ¶¶805-806. The agreement resolved 

claims relating to TurboTax free marketing. RPF ¶¶805, 807. 

8 

PUBLIC
FEDERAL TRADE COMMISSION | OFFICE OF THE SECRETARY | FILED 09/26/2023 OSCAR NO. 608656 -PAGE Page 16 of 101 * PUBLIC * 

The consent order, lifted almost verbatim from the FTC’s pre-litigation proposal to Intuit, 

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

substantially similar ones. RPF ¶810. It also requires that all TurboTax free-product advertising 

clearly and conspicuously disclose the character and nature of any requirements to use the free 

product, and communicate that the free offer is qualified. RPF ¶¶812-814. These binding 

provisions ensure that Intuit’s free-SKU advertising makes all appropriate disclosures clearly and 

conspicuously. RPF ¶¶811-814, 818-819. Intuit has complied with the order and will continue 

doing so. RPF ¶¶821-827. 

D. Procedural History 

The FTC’s investigation of Intuit’s advertising began in 2019. IDF ¶533. An 

administrative complaint issued in 2022. ID 1. The FTC concurrently sought a temporary 

restraining order and preliminary injunction in federal court—unsuccessfully. RPF ¶¶12, 16, 18. 

At a hearing, the court expressed skepticism about CC’s theory of liability. It observed that Free 

Edition ads “don’t say it is free to everybody and nobody thinks it is.” RPF ¶15. It also 

challenged CC’s assertion that Intuit’s ads “omitted” disclosures, pointing out that the disclosure 

“is right there.” Id. 

CC then moved for summary decision. ID 2. Although the Commission denied CC’s 

motion, it criticized Intuit’s evidence, signaling the result it wanted (the one the ALJ reached). 

The ALJ held an evidentiary hearing. CC introduced the challenged ads and presented 

testimony from one affirmative expert (who also appeared on rebuttal) as well as an additional 

rebuttal expert. Intuit provided testimony from three executives about topics including the 

company’s business strategy, values, ad-making process, and understanding of whether the ads 

were deceptive. RPF ¶¶848-877. Intuit also presented testimony from four experts, on topics 

ranging from reasonable consumers in the tax-preparation industry to why Intuit’s economic 

9 

PUBLIC
FEDERAL TRADE COMMISSION | OFFICE OF THE SECRETARY | FILED 09/26/2023 OSCAR NO. 608656 -PAGE Page 17 of 101 * PUBLIC * 

incentives militate against deception to the results of a test-and-control study measuring the 

efficacy of the disclosures CC sought. RPF ¶¶878-911. 

The ALJ concluded after the hearing that the challenged ads were deceptive and that a 

sweeping cease-and-desist order was warranted. See generally ID. 

II. SUMMARY OF ARGUMENT 

1. The ALJ erroneously found Intuit’s ads deceptive. To establish deception, CC 

had to prove both that the ads conveyed to consumers who could not file their taxes for free that 

they could, and that a significant minority of reasonable consumers was likely to be misled by 

the claim conveyed. CC proved neither. 

First, each challenged ad conveyed to reasonable consumers that the advertised free offer 

was qualified, i.e., not available to everyone. The ads never stated or implied that the offer was 

available to everyone or that all TurboTax was free. Moreover, the ads contained disclosures 

that met or exceeded industry benchmarks under FTC guidelines, both in terms of legibility and 

understandability. These disclosures told consumers that each offer applied to a specific SKU, 

that only taxpayers with “simple returns”—a phrase understood by reasonable consumers—were 

eligible, and that consumers could find additional information about the qualifications at 

TurboTax.com. Just the fact that consumers were informed that eligibility was not universal 

defeats CC’s deception theory, as did telling consumers they might qualify and how to find out if 

they did. But the evidence also establishes that reasonable consumers understood the ads’ 

messaging and the scope of the free claim. 

Second, the evidence does not prove that a significant minority of reasonable consumers 

was likely to be deceived. It proves the contrary. To begin, CC did not attempt to prove what 

reasonable consumers took away from any challenged ad. Intuit, meanwhile, offered unrebutted 

testimony that reasonable consumers understood that the free offers had qualifications and knew 

10 

PUBLIC
FEDERAL TRADE COMMISSION | OFFICE OF THE SECRETARY | FILED 09/26/2023 OSCAR NO. 608656 -PAGE Page 18 of 101 * PUBLIC * 

where to find those qualifications, and that Intuit’s ads were consistent with reasonable 

consumers’ expectations. Intuit also showed that additional information was accessible in 

seconds. And Intuit offered (1) a test-and-control survey debunking CC’s critique of the 

challenged ads’ disclosures, (2) metrics inconsistent with CC’s theory of widespread deception, 

and (3) expert testimony that the experience of Intuit’s customer base belies CC’s theory. CC— 

who had the burden of proof—offered only a grossly inadequate survey and a handful of 

unrepresentative consumer complaints, the latter of which proved the absence of deception. 

2. The proposed cease-and-desist order is unwarranted. Intuit’s current ads are not 

deceptive, and its past ads cannot justify prospective relief. Moreover, Intuit presented 

unrebutted testimony from its executives regarding its commitment to—and business interest 

in—clarity in its advertising. Perhaps most importantly, the state consent order, because it 

already enjoins any potentially deceptive conduct, both moots this case and assures that Intuit’s 

advertisements going forward are without reproach. The record therefore does not reflect the 

cognizable danger of future unlawful activity required for injunctive relief. 

Even if any cease-and-desist order were appropriate, the ALJ’s is not. That order is 

impermissibly vague and punitive. It would also be ineffective, and likely harm consumers by 

preventing them from filing for free. And it is overbroad, impermissibly encompassing products 

other than TurboTax, even though the record says nothing about other products. Finally, the 

order’s mandate that Intuit include certain language in its ads unconstitutionally compels speech. 

3. This proceeding is rife with threshold infirmities. It is unconstitutional, violating 

due process (both because of the FTC’s combination of functions and because of the 

Commission’s biased conduct here), articles II and III of the Constitution, and the non-delegation 

doctrine. The proceeding is untimely as well, both because section 5 claims are subject to a 

11 

PUBLIC
FEDERAL TRADE COMMISSION | OFFICE OF THE SECRETARY | FILED 09/26/2023 OSCAR NO. 608656 -PAGE Page 19 of 101 * PUBLIC * 

three-year statute of limitations and because the Commission inequitably waited years before 

bringing this proceeding. 

QUESTIONS PRESENTED 

I. Whether the challenged ads were deceptive. 

II. Assuming deception, whether the ALJ’s cease-and-desist order—or any ceaseand-desist order—is warranted. 

III. Whether these proceedings are constitutional and timely. 

ARGUMENT 

I. THE INITIAL DECISION’S RULING THAT THE CHALLENGED ADS WERE DECEPTIVE IS 

DEEPLY FLAWED 

A. Under A Proper Analysis, None Of The Challenged Ads Was Deceptive 

Free Edition is free—for every single person who uses it. No case has ever held that it is 

deceptive to tell consumers the true price of a product. In fact, the typical deception claim is 

hiding a product’s true price. 

To support their highly unusual theory, CC had to show that (1) the challenged ads 

conveyed that consumers could file for free with TurboTax when they actually could not, and 

(2) a substantial minority of reasonable consumers was likely to be misled by the ads. See FTC 

Policy Statement on Deception, 103 F.T.C. 174, 175-176 (Oct. 14, 1983), appended to Cliffdale 

Associates, 103 F.T.C. 110 (1984). CC did not show either. 

1. The challenged ads conveyed that specific TurboTax products were 

free to consumers who qualified 

CC failed to prove that any challenged ad conveyed that all TurboTax products were free, 

that any TurboTax product was free without qualification, or any other claim CC asserted. 

First, CC failed to prove an “express claim,” which requires an ad to “directly state” a 

false message. RB 37-39; RRB 5-8. CC insist that they can proceed on an express claim theory, 

12 

PUBLIC
 

FEDERAL TRADE COMMISSION | OFFICE OF THE SECRETARY | FILED 09/26/2023 OSCAR NO. 608656 -PAGE Page 20 of 101 * PUBLIC * 

RPF ¶206, but they already conceded that no ad directly stated the false messages asserted, RPF 

¶¶302-308. The ALJ reached a contrary conclusion by misapplying the law and 

mischaracterizing the ads. See ID 169-170, 175-176, 185. The ALJ asserted, for example, that 

one ad expressly claimed, “you can file on TurboTax for absolutely nothing.” ID 169. But the 

ALJ ignored that when the quoted words were spoken, the ad displayed not only the name of the 

product and offer being advertised—“Federal Free Edition” and “Absolute Zero”—but also 

“TurboTax Federal Free Edition is for simple U.S. returns only” and “See offer details at 

TurboTax.com.” RPF ¶226. The ALJ also quoted several ads that directly stated, “TurboTax 

Free Edition is Free.” ID 169-170, 175, 185. But because Free Edition is free, stating that fact is 

not a false express claim. 

Nor did any challenged ad imply any false message. “An advertisement will only be 

found to contain implied claims” if, “after examining the interaction of all of the [ad’s] 

constituent elements,” the court can “conclude with confidence” that those elements together 

“convey a particular implied claim to consumers acting reasonably under the circumstances.” 

Telebrands Corp., 140 F.T.C. 278, 429 (2005). Here, “examining the interaction of all of the 

constituent elements,” id., makes clear that nothing false was implied. RPF ¶¶215-218, 248-252, 

266-268, 281-282, 294. 

In concluding otherwise, the ALJ made two critical errors. He failed to recognize that 

Free Edition is free and thus that the ads made a truthful claim. He also wrongly discounted the 

ads’ qualifying language on the ground it was not “legible and understandable,” ID 170, or was 

“inconspicuous” and “unclear,” ID 160.1 

1

 The ALJ criticized CC for presenting incomplete advertisements, ID 173 n.19, but never 

considered the import of that obfuscation: He, the adjudicator, was not presented with the full 

advertisements, i.e., in the form actually seen or heard by reasonable consumers. 

13 

PUBLIC
FEDERAL TRADE COMMISSION | OFFICE OF THE SECRETARY | FILED 09/26/2023 OSCAR NO. 608656 -PAGE Page 21 of 101 * PUBLIC * 

a. The challenged ads’ qualifying language was sufficiently “legible” (and audible). 

Policy Statement on Deception, 103 F.T.C. at 184. The ALJ averred that the language was 

“small,” “faint,” or too “fast[].” ID 171. But those adjectives require evidence. And CC offered 

no evidence that the qualifying language could not be seen (or heard) by reasonable consumers. 

RPF ¶¶230-231, 255-256, 271, 286, 295. 

The ALJ, moreover, ignored the only evidence that objectively measured the qualifying 

language. Professor Peter Golder compared Intuit’s video and social-media ads to those of 

eighteen benchmark companies across four industries, using seven metrics drawn from the 

FTC’s guidelines on “How to Make Effective Disclosures in Digital Advertising”: placement, 

height, color, duration, repetition, proximity in time to the claim being qualified, and whether 

distracting factors were present. RPF ¶¶234-236, 258. On every metric, the challenged 

TurboTax ads were statistically comparable or superior to the benchmark companies’. RPF 

¶¶237, 259. CC did not even attempt to rebut Professor Golder’s conclusions, responding 

instead that compliance with the FTC’s guidelines did not necessarily mean an ad was not 

deceptive. RPF ¶927. That assertion is facially dubious, inverts the burden of proof, and if true 

would raise due-process concerns, see FCC v. Fox Television Stations, 567 U.S. 239, 254 (2012). 

The qualifying language in the challenged ads also met or exceeded the standards courts 

have established. Disclosures have been held adequate even when they were “smaller than most 

of the text in the advertisement,” FTC v. DirecTV, 2018 WL 3911196, at *8 (N.D. Cal. Aug. 16, 

2018), or appeared only “in the closing seconds of the commercial,” Estrella-Rosales v. Taco 

Bell Corp., 2020 WL 1685617, at *2 (D.N.J. Apr. 7, 2020). The ALJ’s observation that the ads’ 

qualifying language was “smaller” than other text, ID 176, or “appeared near the end of the 

advertisement and lasted only a few seconds,” ID 171—which could also be said of the ads’ 

14 

PUBLIC
FEDERAL TRADE COMMISSION | OFFICE OF THE SECRETARY | FILED 09/26/2023 OSCAR NO. 608656 -PAGE Page 22 of 101 * PUBLIC * 

references to TurboTax, RPF ¶223—is thus not answering a question that matters. The evidence 

showed that qualifying language is frequently smaller, because often there is more of it. E.g., 

RPF ¶¶215-218, 232-237. Reasonable consumers know this and know where to find it. RPF 

¶¶229, 232, 238, 257, 259, 514-524. 

b. The ads’ qualifying language was “understandable” to reasonable consumers. 

Policy Statement on Deception, 103 F.T.C. at 184. As elaborated below, the ads included 

multiple qualifications, stating that (1) the ad was for a specific TurboTax SKU, (2) consumers’ 

ability to use that SKU was qualified, and (3) additional information about the SKU and its 

qualifications was on TurboTax.com. RPF ¶¶244, 262, 275, 290, 299. Taken together (as they 

must be), these “constituent elements,” Telebrands, 140 F.T.C. at 429, ensured that reasonable 

consumers understood that TurboTax was advertising a free product available only to qualified 

consumers. 

First, most of the challenged ads (and all the challenged video ads, contrary to the initial 

decision’s and summary decision’s assertions, see ID 171; Summary-Decision Order 11 (Jan. 31, 

2023)) conveyed that they were for a particular free product—not for every TurboTax product or 

for TurboTax as a whole. RPF ¶¶215, 250, 266, 281-282, 294. The ALJ’s contrary conclusion, 

that telling consumers the product name somehow reinforced that the free claim was unqualified, 

ID 171, makes no sense. If Intuit has a “free edition,” reasonable consumers understand that 

there are also editions that are not free. RPF ¶319. Unsurprisingly, there is unrebutted evidence 

that the inclusion of the product name in the challenged ads was itself sufficient to convey to 

consumers that there were multiple TurboTax SKUs and that only one was being advertised as 

free. Id. 

15 

PUBLIC
FEDERAL TRADE COMMISSION | OFFICE OF THE SECRETARY | FILED 09/26/2023 OSCAR NO. 608656 -PAGE Page 23 of 101 * PUBLIC * 

Second, the challenged ads included language conveying that not all consumers would 

qualify for a free TurboTax product. Most ads, for example, specified that a free offer was for 

“simple tax returns only” (and/or for “Forms 1040EZ/1040A” only, until a 2017 amendment of 

the tax laws engendered changes in IRS forms). RPF ¶¶215-217, 248-249, 252, 267-268, 281-

282, 294. The ALJ dismissed this critical language as “ambiguous.” ID 172. That is wrong: 

The evidence, including a consumer survey and consumer testimony, shows that reasonable 

consumers understood the meaning of “simple tax returns.” RPF ¶¶130-145; infra Section 

I.A.2.b. It is also irrelevant, because even if reasonable consumers were unsure precisely what 

constituted a “simple tax return,” the disclosure that the advertised product was for “simple tax 

returns only” unmistakably conveyed the material limitation, i.e., that a consumer viewing the ad 

might not qualify for the offer based on the complexity of their return. Thus, a reasonable 

consumer would not conclude that “TurboTax was free.” The ALJ responded that “simple tax 

returns only” could convey “either an unqualified free offer available to the viewer or a qualified 

offer that may not apply to the viewer.” ID 172. That is facially incorrect; there is no way in 

which “simple tax returns only” could convey “an unqualified free offer,” id. As Professor 

Golder put it, both “simple” and “only” each mean (at the very least) not “all.” RPF ¶135. Even 

CC’s own expert testified that he understood, after seeing that Free Edition was for simple 

returns only, that his taxes would not qualify “given that [his] tax situation [was] complicated.” 

RX1396 at 188. 

“Simple returns only,” moreover, puts consumers on notice of the nature of the 

qualifications to use the free product. See RPF ¶¶135-136, 314-315, 322. Courts routinely 

uphold similar disclosures (in fact, disclosures far more ambiguous). One court, for example, 

held that the disclosures “[a]t participating locations for a limited time” and “[p]rices may vary” 

16 

PUBLIC
FEDERAL TRADE COMMISSION | OFFICE OF THE SECRETARY | FILED 09/26/2023 OSCAR NO. 608656 -PAGE Page 24 of 101 * PUBLIC * 

were consistent with television advertising practices and sufficient to put reasonable consumers 

on notice of the promotion’s restrictions, even without further details. Estrella-Rosales, 2020 

WL 1685617, at *2; see also Little Caesars Enterprises v. Smith, 895 F.Supp.884, 888, 899 (E.D. 

Mich. 1995) (similar). Just so here: The phrase “simple tax returns only” conveyed that not all 

tax returns were covered and that tax complexity would determine eligibility. 

Finally, many of the challenged ads (including all the challenged video ads) conveyed 

that consumers could find more information about the qualifications for free TurboTax offers at 

TurboTax.com, inviting consumers to “see if you qualify” or “see details” at that website. RPF 

¶¶215, 218, 294. (Most of the ads that did not expressly refer to the website were themselves 

hyperlinks that took consumers directly there. RPF ¶¶253, 269, 284.) The ALJ discounted these 

disclosures on the ground that they were “‘pro forma statements.’” ID 172 (quoting Policy 

Statement on Deception, 103 F.T.C. at 183). But contrary to the initial decision’s citation, the 

phrases “see details” and “see if you qualify” are not identified in the FTC’s policy statement as 

“pro forma statements.” ID 172. Those phrases, in fact, appear nowhere in the policy 

statement—likely because they are not “pro forma.” Rather, they both (1) clearly informed 

consumers that the free product was not for everyone, RPF ¶324, and (2) directed consumers to 

thorough information about the product’s limitations, RPF ¶¶254, 285, 370. 

2. Reasonable consumers were not likely to be misled 

a. Reasonable consumers expect free tax-preparation offers to be 

qualified 

CC had to show that the challenged ads were likely to mislead “not just any consumers,” 

but a significant minority of “consumers acting reasonably in the circumstances.” Southwest 

Sunsites, Inc. v. FTC, 785 F.2d 1431, 1436 (9th Cir. 1986). That analysis “starts with the 

background knowledge of the reasonable consumer.” Dinan v. Sandisk LLC, 2019 WL 2327923, 

17 

PUBLIC
FEDERAL TRADE COMMISSION | OFFICE OF THE SECRETARY | FILED 09/26/2023 OSCAR NO. 608656 -PAGE Page 25 of 101 * PUBLIC * 

at *6 (N.D. Cal. May 31, 2019). CC’s case (and the ALJ’s decision) fails because it is rooted in 

an outdated view of consumer perception. The 1950s ended over 60 years ago; it is time for the 

FTC to modernize its case law and recognize that reasonable consumers have access to more 

information and are far savvier than when television was new. It is the reasonable consumer 

standard, which requires analyzing consumers as they are, not as they used to be. 

Missing from CC’s presentation of evidence was information about reasonable 

consumers in this industry. The record shows that those consumers understand both that free 

offers have qualifications (RPF ¶¶471-480) and, more specifically, that free online taxpreparation offers are typically available only to consumers with simple tax returns (RPF ¶¶481-

484). Consumers understand that such offers are so limited because all major players in the 

online tax-preparation industry have both a basic free product for consumers with simple tax 

returns and paid products for more complex tax situations. RPF ¶¶481-482. By 2011, in fact, 

that model was “an entrenched part of the ... market.” United States v. H&R Block, 833 

F.Supp.2d 36, 46-48 (D.D.C. 2011). The model’s ubiquity led reasonable consumers to expect 

free online tax-preparation offers to have qualifications tied to tax complexity—even if (unlike 

here) those qualifications were not expressly stated. RPF ¶¶483-484. And that expectation 

manifested in consumer skepticism of free online tax-preparation offers, which resulted in 

consumers underestimating whether they could file for free. RPF ¶¶488-493; see also RPF 

¶¶485-487. 

The FTC’s “free” guidelines likewise recognize that the “public understands” that free 

offers are usually coupled with the requirement to purchase paid products at full price. RPF 

¶476. The ALJ ignored that guidance, even when citing other portions of the guidelines to 

justify his order, ID 227. The ALJ cannot selectively choose what parts of the FTC’s guidance 

18 

PUBLIC
FEDERAL TRADE COMMISSION | OFFICE OF THE SECRETARY | FILED 09/26/2023 OSCAR NO. 608656 -PAGE Page 26 of 101 * PUBLIC * 

should apply—either the free guides should be credited, or not. This provision—properly 

considered—establishes as a matter of law that reasonable consumers were unlikely to be 

deceived because their baseline assumption was that they would have to pay. 

The record also shows that consumers were familiar with the term “simple tax returns,” 

which originated with the IRS and is used throughout the tax-preparation industry. RPF ¶¶119-

123, 141-143, 453-454, 458-459. Intuit chose to use the term precisely “

 because and because it 

RPF ¶123. Indeed, because the phrase is “commonplace in the [relevant] 

market,” “reasonable consumer[s]” should be deemed as a matter of law to “understand[]” it. 

Ebner v. Fresh, Inc., 838 F.3d 958, 965 (9th Cir. 2016); see also Marksberry v. FCA US LLC, 

606 F.Supp.3d 1075, 1081 (D. Kan. 2022) (reasonable consumers are familiar with qualifications 

“often ... associated with” a product). 

Even consumers who were not familiar with free tax-preparation offers were unlikely to 

be deceived, because reasonable consumers generally do not expect ads to provide every detail 

about an offer and understand that additional information is available elsewhere, often online, 

especially for an online product. RPF ¶¶510-513, 520-527. The challenged ads reinforced that 

understanding, expressly directing and/or linking consumers to TurboTax.com, which fully 

explained each offer’s qualifications, including with the very form-by-form analysis CC and the 

ALJ would require. RPF ¶¶253-254, 269-270, 284-285. 

Finally, the record shows that consumers typically choose a tax-preparation product only 

after engaging in a “considered” and “high involvement” process. DirecTV, 2018 WL 3911196, 

at *3; see RB 59-61. That process normally involves not just relying on ads but also considering 

alternatives and consulting with friends, family, and/or third-party reviews. RPF ¶¶502-509, 

19 

PUBLIC
FEDERAL TRADE COMMISSION | OFFICE OF THE SECRETARY | FILED 09/26/2023 OSCAR NO. 608656 -PAGE Page 27 of 101 * PUBLIC * 

782, 786, 891. This further underscores the unlikelihood that a substantial minority of 

reasonable consumers would be deceived by ads saying (in sum and substance) “For simple tax 

returns only. Find out if you qualify at TurboTax.com.” This is not the same as requiring 

consumers to do research. Instead, the evidence reveals that consumers already research taxpreparation products—in part explaining why there was no showing of actual deception even 

after the challenged ads ran billions of times. 

Despite acknowledging that extrinsic evidence must be considered, ID 158, the ALJ 

ignored or improperly discounted the evidence just discussed. For instance, he wholly failed to 

address the evidence that reasonable consumers conduct substantial research before selecting a 

tax-preparation method or provider. RPF ¶¶502-509, 513, 782, 891. He also wrongly asserted 

that consumers’ familiarity with the phrase “simple returns” “says little or nothing about 

consumers’ understanding [regarding] whether, or how, the phrase applies to them.” ID 193. 

That contradicts both fact and expert testimony, RPF ¶¶122-123, 134-136, 139-145, which the 

ALJ did not even acknowledge. As Professor Golder explained, for example, the widespread 

and consistent use of the term is “critically important” to consumer understanding. RPF ¶144. 

Further, the ALJ’s reasoning defies common sense: Familiarity implies understanding. RPF 

¶145. 

Likewise indefensible is the ALJ’s critique that Intuit’s “contention that ‘simple tax 

returns’ is an IRS term familiar to consumers was not supported by any IRS evidence, such as 

public communications or other IRS documents,” ID 193 n.25. Several IRS documents in 

evidence, as well as a report by the Government Accountability Office, show that the IRS has 

long used the phrase. RPF ¶¶119-120. To the extent the ALJ faulted Intuit for not presenting 

additional evidence, Intuit could not do so only because the ALJ denied its motion seeking that 

20 

PUBLIC
FEDERAL TRADE COMMISSION | OFFICE OF THE SECRETARY | FILED 09/26/2023 OSCAR NO. 608656 -PAGE Page 28 of 101 * PUBLIC * 

evidence. See Order (Jan. 3, 2023). As Intuit previously explained, and the ALJ has now 

recognized, documents reflecting how the IRS uses the term “simple tax returns” are relevant 

and should have been discoverable. Intuit’s Motion to Compel Production of Documents 6-8 

(Dec. 19, 2022). Given that the ALJ’s faulty ruling denying such discovery manifestly played a 

role in his deception finding, that ruling itself merits remand. 

Finally, the ALJ wrongly disregarded evidence concerning consumers’ experience with 

other free offers simply because those offers involved tiered products or bundles of products 

rather than a single product. ID 195. What matters is that reasonable consumers expect free 

offers to be qualified, such that they are unlikely to assume that a product is necessarily free for 

them. RPF ¶¶472-483, 485-491. That does not change if the free offer relates to a single product 

rather than a bundle of products. Id. Indeed, the FTC’s own free guide deals only with tiered or 

bundled products, 16 C.F.R. §251.1, yet the ALJ used the guide as the predicate for his decision 

and order, ID 227. 

b. Extrinsic evidence confirms that reasonable consumers were not 

likely to be deceived 

i. Intuit copy testing and market research. Intuit’s testing of the challenged ads (CC 

and their experts did no such testing) established that the ads were not deceptive. Copy testing 

from TYs 2020 and 2022 shows that around one-third of consumers believed they could file for 

free using TurboTax, both when presented with just the TurboTax brand name in TY 2020 (RPF 

¶¶609-610), and when shown recent TurboTax ads in TY 2022 (RPF ¶¶702-711). That one-third 

share is far less than the 50% of consumers in the market for online tax-preparation who have 

simple tax returns and therefore qualify. RPF ¶¶695, 709-711, 804. The 33% figure is also 

lower than expected given that participants in the copy testing were likely to qualify to file for 

free. RPF ¶¶689-690, 695, 702, 705, 709-711. Those results indicate that the challenged ads did 

21 

PUBLIC
FEDERAL TRADE COMMISSION | OFFICE OF THE SECRETARY | FILED 09/26/2023 OSCAR NO. 608656 -PAGE Page 29 of 101 * PUBLIC * 

not mislead consumers into believing that TurboTax was free for them when it was not. RB 31-

32, 68-69. 

A TY 2020 Net Promoter Score study similarly indicated a lack of deception or customer 

confusion. RPF ¶721. The study demonstrated that the percentage of respondents who were 

aware of a free TurboTax product before they decided to use TurboTax (48%) was about the 

same as the percentage who in fact filed for free with Free Edition (44%). RPF ¶717. Thus, of 

those who even knew about a free TurboTax product, nearly all used that product and filed for 

free. RPF ¶¶718-721. 

These tests establish as a matter of law that there was no deception, as the confusion rates 

are far below the lowest number ever accepted as proof of deception in any FTC enforcement 

action. See Telebrands, 140 F.T.C. at 446-448 (citing cases). Indeed, in Telebrands, the 

Commission found that a 10% confusion rate, based on a test-and-control study, met the 

“significant minority” standard, but that a 3.9% rate did not. Id. at 422, 447-448; see also ECM 

Biofilms, 160 F.T.C. 652, 667-668 (2015) (“[W]e have found percentages ranging from 10% to 

22% to be sufficient to constitute a significant minority.”). 

The ALJ either ignored or misconstrued this evidence, finding that market research 

“shows that at least a significant minority of consumers believe that they can file their taxes for 

free with TurboTax.” ID 187-188. As discussed, it showed the opposite. The ALJ’s apparent 

belief that no consumers should believe they can file for free with TurboTax—when roughly 

50% of consumers in the online tax-preparation market actually can—is the source of this serious 

error. Further demonstrating that infirm belief, the ALJ relied on market research from a single 

year revealing that 22% or 49% of respondents were confident that Free Edition is free. But Free 

Edition is in fact free, so those results say nothing about whether consumers were deceived. RRF 

22 

PUBLIC
FEDERAL TRADE COMMISSION | OFFICE OF THE SECRETARY | FILED 09/26/2023 OSCAR NO. 608656 -PAGE Page 30 of 101 * PUBLIC * 

¶¶597-598. The ALJ’s characterization of consumer confidence that a free product is free as 

“not ... insignificant” is thus meaningless, and his reliance on those figures erroneous. ID 196. 

The ALJ’s reliance on Intuit’s copy testing is similarly misplaced. ID 188. The TY 2018 

and 2020 copy tests are not evidence that reasonable consumers were misled into believing they 

could file for free using TurboTax, because neither presented consumers with the final versions 

of ads. RRB 29-32; RRF ¶¶601, 610; RPF 699. Accordingly, neither test says anything about 

the challenged ads, including the claims conveyed by those ads or whether the ads were likely to 

mislead consumers. As noted, moreover, participants in both tests were more likely to qualify 

for Free Edition than the general public (and therefore it is more likely that any belief they had 

that they could file for free was correct). RRF ¶¶600-610; RPF 690, 699. The ALJ simply 

assumed without justification (or explanation) that a minority of participants would have 

qualified to use Free Edition. ID 188.2 

The ALJ also erroneously relied on results from the TY 2018 copy test indicating that the 

advertisements “communicat[ed] the parent brand TurboTax well” but that “only about ~5% take 

away the sub brand (TurboTax Free, TurboTax Live).” ID 194. That merely reflected responses 

to the question: “Which brand do you think this ad was for?” RRF ¶¶609-610. Understandably, 

most consumers would consider the relevant “brand” to be TurboTax (which it is). 

Finally, the ALJ’s characterization of the percentages in the TY 2022 copy test as “not 

insignificant,” ID 221 n.42, is neither coherent nor supported by evidence. The TY 2022 results, 

which showed that and of participants believed that 

, are consistent with the percentage of consumers in the general population who actually do 

2

 For the same reasons, the ALJ was wrong that the TY 2018 and 2020 copy tests put 

Intuit on notice that a significant percentage of consumers mistakenly believed that TurboTax 

was free for them. ID 221. 

23 

PUBLIC
FEDERAL TRADE COMMISSION | OFFICE OF THE SECRETARY | FILED 09/26/2023 OSCAR NO. 608656 -PAGE Page 31 of 101 * PUBLIC * 

qualify to file for free using Free Edition. RPF ¶690. The fact that consumers accurately 

understood whether they qualified for free filing is evidence of non-deception. Moreover, the 

evidence shows that 

RPF ¶¶705-706. Again, the ALJ failed to grapple with 

the sample, offering only the conclusory claim that it was “not probative.” ID 221 n.42. 

ii. Consumer complaints and feedback. The miniscule number of consumer 

complaints CC adduced further proves that a significant minority of reasonable consumers was 

unlikely to be deceived. If the challenged ads had deceived consumers in significant numbers, 

Intuit would have been “overwhelmed with complaints, in every channel.” RPF ¶647; see also 

RPF ¶¶624-625. Instead, CC identified (at most) 228 consumer complaints. Even if all those 

complaints were both relevant and reliable (they weren’t, see RPF ¶¶626-630, 633-635), they 

represent just 0.0003% of the 86.4 million TurboTax customers who completed at least one 

return between TYs 2015 and 2021, RPF ¶¶631-632, 637. That amounts to 0.0025 complaints 

per 1,000 consumers—much lower than the range of 0.35 to 143.8 complaints per 1,000 

consumers found to support deception in other FTC cases (as detailed by an FTC economist in a 

paper relied on here by CC’s expert). RPF ¶¶641-642; see also RPF ¶¶643-644, 646. Professor 

Golder’s complaint-benchmarking analysis confirms that the number of complaints lodged 

against Intuit is inconsistent with deception. RB 86-87; RPF ¶¶623-625, 638-640, 646-647.3 

Intuit’s customer-review data similarly show exceedingly low rates of negative feedback: 

and of TurboTax’s TY 2020 and TY 2021 customers bases, respectively. 

3

 Bizarrely (or perhaps revealingly), just as Professor Golder was testifying about the 

numerous unreliable consumer complaints, the ALJ pressured him to move on. Tr. 1206-1207. 

24 

PUBLIC
FEDERAL TRADE COMMISSION | OFFICE OF THE SECRETARY | FILED 09/26/2023 OSCAR NO. 608656 -PAGE Page 32 of 101 * PUBLIC * 

RRF ¶¶635, 642. That is a far cry from the “ten percent” figure that “FTC cases suggest ... the 

Commission would be justified in considering” indicative of deception. Telebrands, 140 F.T.C. 

at 447-448. 

The ALJ discounted this consumer-feedback evidence because “evidence that some 

consumers were not injured or were satisfied with TurboTax’s products” is not a defense to 

liability. ID 205. That is not what Intuit argued. Intuit argued that CC could not possibly show 

that a substantial minority of reasonable consumers was likely to be deceived when some of the 

best evidence of deception (consumer complaints and other feedback) is starkly inconsistent with 

such widespread deception. RPF ¶¶623-626. To the extent the ALJ was suggesting that it is a 

novel concept that consumer feedback can provide evidence of deception, that is wrong; CC’s 

own expert authored an article explaining that consumers “retaliat[e]” against brands if a product 

“does not meet expectations.” RPF ¶624. And it is well-established in academic marketing 

literature that complaints are a “major source of information on the quality of products and 

companies.” Id. 

The ALJ likewise wrongly dismissed Professor Golder’s complaint-benchmarking 

analysis, again on the ground that “the existence of some satisfied customers” is not a defense to 

liability. ID 205. But the analysis did not show—or even try to show—merely that some 

consumers were satisfied; it showed that Intuit’s complaint rate was entirely inconsistent with 

CC’s theory of deception. RPF ¶640; RRF ¶¶722, 735. As to that key point, the ALJ (and CC) 

had nothing to say. 

Nor does the record support the ALJ’s unscientific assertion that there were “ample 

reports” from consumers indicating that they were deceived. ID 205. The supposedly “ample” 

reports are 6 customer reviews from TY 2020 and 45 reviews or complaints from TY 2021. ID 

25 

PUBLIC
FEDERAL TRADE COMMISSION | OFFICE OF THE SECRETARY | FILED 09/26/2023 OSCAR NO. 608656 -PAGE Page 33 of 101 * PUBLIC * 

205. The 6 reviews from TY 2020 account for of the consumers who 

filed using TurboTax in that year, and the 45 reviews or complaints from TY 2021 account for 

of the who used TurboTax in that year. See RRF ¶¶635-662. These few 

examples do not provide a meaningful picture of consumer sentiment. RPF¶654. Even these 

seemingly negative reviews, moreover, lack the context necessary to assess whether they support 

CC’s theory of deception—and often, in fact, the little context that exists shows they do not. 

RRF ¶¶635-662. 

Lastly, the ALJ’s reliance on one source of customer reviews—Intuit’s Customer 

Relations Management (CRM) data, IDF ¶¶488-507—was improper because Intuit was 

prevented from offering expert evidence providing essential context for the data. CC’s summary 

of CRM entries was excluded by a bench ruling in which the ALJ denied both parties’ requests 

to introduce supplemental expert reports. Order Memorializing Bench Rulings (Mar. 28, 2023). 

But CC then circumvented that order by repurposing an appendix to their excluded supplemental 

expert report as summary exhibit GXD006, which the ALJ admitted over objection. Compare 

Intuit’s Motion for Leave to Amend Its Exhibit List, Attachment GX870 at App’x B, with 

GXD006. Because Intuit was denied the opportunity to offer a supplemental expert report to 

respond to the evidence, the evidence must be disregarded. See 16 C.F.R. §3.43(d)(1); see also 

Attachment A (proffered supplemental expert report). 

iii. Consumer-experience data. Various other metrics reflecting consumers’ 

experiences with TurboTax provide still more evidence that consumers’ expectations were met, 

i.e., that consumers were not deceived. RPF ¶656. For instance, the fact that consumers 

abandoned TurboTax’s paid products at the same rate they abandoned its free products (22%) 

demonstrates that consumers who abandon TurboTax do so not because they were misled about 

26 

PUBLIC
FEDERAL TRADE COMMISSION | OFFICE OF THE SECRETARY | FILED 09/26/2023 OSCAR NO. 608656 -PAGE Page 34 of 101 * PUBLIC * 

whether they could file for free but for a reason (or reasons) common to all products. RPF 

¶¶656-658. TurboTax’s high customer-retention rate for its paid products—which exceeds the 

rate for Free Edition, contrary to what one would expect if the alleged deception existed— 

likewise reflects that consumers who paid for TurboTax did not feel misled. RPF ¶¶91-92, 649-

650. 

iv. Consumer deposition testimony. Numerous consumers offered deposition 

testimony indicating that they were not deceived by the challenged ads. E.g., RPF ¶635. For 

example, consumers testified that they: 

 understood that there were qualifications for free TurboTax offers, that free 

TurboTax offers were not available to everyone, and that not all TurboTax 

products were free, RRF ¶¶669-670; 

 understood that Free Edition’s qualifications were based on tax complexity and 

that it was available to taxpayers with simple returns, RRF ¶¶666, 669-670; 

 understood the phrase “simple tax returns,” RRF ¶670; 

 understood that they could visit TurboTax.com to find details about what 

qualified as a simple tax return and determine whether they qualified, RRF ¶¶669-

670; and 

 understood that they could click on hyperlinks at TurboTax.com to learn more 

about the qualifications for free offers, RRF ¶675. 

The ALJ gave no reason for ignoring this testimony while focusing intently on select deposition 

excerpts CC offered. IDF ¶¶511-517. 

The deposition testimony on which the ALJ relied does not support finding that a 

significant minority of reasonable consumers was likely to be deceived either. To begin with, 

27 

PUBLIC
 

FEDERAL TRADE COMMISSION | OFFICE OF THE SECRETARY | FILED 09/26/2023 OSCAR NO. 608656 -PAGE Page 35 of 101 * PUBLIC * 

the testimony often contained “obvious inconsistencies” that rendered it “unreliable,” Southern 

States Distributing Co., 1973 WL 165073, at *19 (F.T.C. 1973). See RRF ¶¶664-675. For 

example, one consumer testified both that he did not know who qualified for Free Edition and 

that he understood that Free Edition was only for consumers with simple tax returns. See GX137 

at 56, 67-68. Further, the sixteen consumers whose testimony the ALJ cited represent an 

infinitesimally small fraction of all TurboTax customers and are not even close to representative 

of Intuit’s customer base. Instead, CC identified these consumers as likely to support CC’s case 

because they had filed complaints related to TurboTax or signed a declaration at CC’s request. 

E.g., RRF ¶664. Meanwhile, while one would expect those consumers to uniformly testify in 

support of CC, only a few did. In fact, two of the ALJ’s findings are supported by just one 

consumer’s testimony; a single consumer’s experience—particularly an outlier who filed a 

complaint related to TurboTax—does not establish how reasonable consumers would have 

perceived the challenged ads. IDF ¶¶516-517. 

v. TY 2021 customer-base analysis. The detailed analysis of TY 2021 customerlevel data conducted by Bruce Deal, an economist and Intuit’s expert, further suggests that the 

challenged ads were not deceptive to a substantial minority of reasonable consumers. As 

explained in Intuit’s post-trial brief (at 89-92), those data reflect that only 510 customers out of 

55.5 million, or 0.0009%, exhibited behavior consistent with deception. RPF ¶¶679-682. The 

ALJ failed to even address the import of Mr. Deal’s analysis, much less explain why it does not 

undermine (if not outright eviscerate) his conclusions.4 

4

 Mr. Deal’s opinions were not in the record when CC moved for summary decision. 

When Commissioner Slaughter asked at oral argument whether Intuit would present evidence 

concerning the value of customer retention to Intuit’s business model, Intuit answered 

affirmatively. Mr. Deal offers that evidence. His trial testimony is at Tr. 1291-1497, and his 

report is RX1027. 

28 

PUBLIC
 

FEDERAL TRADE COMMISSION | OFFICE OF THE SECRETARY | FILED 09/26/2023 OSCAR NO. 608656 -PAGE Page 36 of 101 * PUBLIC * 

vi. Other expert analyses and survey evidence. John Hauser’s “Disclosure Efficacy 

Survey” provides additional evidence that the challenged ads were not deceptive. RB 93-94; 

RPF ¶¶722-745. Dr. Hauser showed consumers versions of the challenged ads that were 

modified to reduce the emphasis on “free” and to provide additional information about Free 

Edition’s qualifications. If the challenged ads were deceptive, one would expect these revisions 

to have discouraged consumers from considering the advertised product. The survey showed 

otherwise. RPF ¶742. Perhaps for that reason, the ALJ never mentioned the survey when 

analyzing deception. 

c. The ALJ erroneously relied on Professor Novemsky’s survey 

As Intuit first explained in its (wrongly denied) motion in limine, the survey and related 

opinions offered by FTC expert Nathan Novemsky are irrelevant (because he failed to show his 

participants any of the challenged ads) and unreliable (due to numerous methodological flaws). 

The record subsequently developed confirms that Professor Novemsky’s opinions are entitled to 

no weight. RB 71-82; RRB 13-14, 53-55; RRF ¶¶467-894. 

i. “Simple returns” results. The ALJ erroneously concluded that Professor 

Novemsky’s survey constitutes “persuasive evidence that consumers do not accurately 

understand the meaning of ‘simple returns.’” ID 191. As Intuit explained (RRB 53-54), the 

survey does no such thing. 

To start, Professor Novemsky admitted that many of his survey participants understood 

that eligibility for TurboTax’s free SKUs was based on the “complexity or simplicity” of their 

tax returns. RPF ¶136. Moreover, the survey says nothing about how consumers understood the 

challenged ads’ use of “simple returns” because, again, Professor Novemsky did not show 

respondents the actual ads or otherwise provide respondents with all the information that the 

actual ads did. RRF ¶¶491-492, 496-497. In the actual ads, for example, Intuit’s use of the 

29 

PUBLIC
FEDERAL TRADE COMMISSION | OFFICE OF THE SECRETARY | FILED 09/26/2023 OSCAR NO. 608656 -PAGE Page 37 of 101 * PUBLIC * 

phrase was nearly always accompanied by language (such as “see if you qualify”) inviting 

consumers to see additional information about the advertised product’s qualifications on the 

TurboTax website, as well as language specifying the product being advertised. RPF ¶¶244, 

262, 275, 290, 299. 

The ALJ concluded that providing survey participants with that additional information— 

i.e., the actual ads that are the subject of this proceeding—was unlikely to “materially alter their 

perception of their qualification for ‘simple returns’” because Intuit’s “fail[ure] to include any 

additional details about th[e] qualification ... invites consumers to determine the meaning of the 

phrase for themselves.” ID 191. But the language that Professor Novemsky omitted (“see 

details” or “see if you qualify at TurboTax.com”) would prevent consumers from determining 

the meaning of “simple returns” themselves. RRF ¶¶491-492. The ALJ hypothesized that 

consumers likely have “their own pre-existing definition of ‘simple,’” based on “wishful 

thinking,” and that they are unlikely to “seek[] out additional information.” ID 191-192; IDF 

¶443. The only cited support for that hypothesis, however, is Professor Novemsky’s survey, id.; 

see RPF ¶927; RRF ¶499, which provides no support since Professor Novemsky barred 

participants from seeking out additional information, RRB 54. 

The survey’s results concerning consumers’ understanding of “simple returns” were 

further infected by the flaws and biases discussed in the balance of this subsection. 

ii. Improper survey design. The ALJ correctly concluded that Professor 

Novemsky’s opinion about the “source of survey participants’ beliefs ... lacks a firm grounding 

and is not entitled to much weight” because Professor Novemsky “did not show [his participants] 

any TurboTax advertisements” and “did not use a control group.” ID 190. But the decision fails 

to appreciate the impact of this improper survey design, finding despite these acknowledged 

30 

PUBLIC
FEDERAL TRADE COMMISSION | OFFICE OF THE SECRETARY | FILED 09/26/2023 OSCAR NO. 608656 -PAGE Page 38 of 101 * PUBLIC * 

flaws that Professor Novemsky used “an appropriate design to measure consumer existing 

consumer perceptions” (IDF ¶395) and that his survey represented “reasonably reliable ... proof 

that a significant percentage of consumers who are ineligible to file for free have the 

misimpression that they can file their taxes for free with TurboTax” (ID 190). In reality, because 

Professor Novemsky did not use a control, he had no way to estimate the effect of the survey 

itself on respondents’ perceptions. RPF ¶539. Given this shortcoming (and the survey’s various 

other flaws), the ALJ’s conclusion that Professor Novemsky adhered to survey guidelines (IDF 

¶¶400, 435) is incorrect, RRF ¶532; see also RPF ¶¶566-589; RRF ¶481.5 

iii. Leading survey questions. The Novemsky survey results concerning whether 

consumers thought they could file for free are also unreliable because they are based on a single 

multiple-choice question (TAT240) that invited guessing (RB 74) and “primed respondents” to 

answer the way Professor Novemsky wanted (RPF ¶¶572-573). See Fish v. Kobach, 309 

F.Supp.3d 1048, 1060 (D. Kan. 2018) (disapproving survey that similarly “primed respondents” 

to answer in a particular way), aff’d, 957 F.3d 1105 (10th Cir. 2020). Several survey participants 

confirmed that their responses were prompted by the survey itself, providing explanatory 

answers like, “[i]t’s been said a few times now during survey that you can file for free using 

TurboTax.” RPF ¶¶575-577. The ALJ dismissed those responses because they involved 

“[f]ewer than 1%” of respondents (IDF ¶421), but “respondents actively not[ing] the impact of 

the survey on their answers without prompting is strongly indicative of a more widespread” 

problem, RRF ¶589. Nor did the ALJ address Dr. Hauser’s blind-coding analysis, which showed 

5

 Given the ALJ’s finding that the Novemsky survey says nothing about the source of 

participants’ beliefs, the contradictory finding—that the results from one survey group (Group B) 

“provide[d] some indication of the power of ‘free messaging,’ and its potential to overcome even 

the past experiences of those who have previously paid to use TurboTax,” ID 128—lacks any 

logical basis and should be disregarded. 

31 

PUBLIC
 

FEDERAL TRADE COMMISSION | OFFICE OF THE SECRETARY | FILED 09/26/2023 OSCAR NO. 608656 -PAGE Page 39 of 101 * PUBLIC * 

that nearly half of Professor Novemsky’s respondents provided open-ended answers that were 

inconsistent with their answer to TAT240, further suggesting that those participants’ perceptions 

were influenced by the survey. RPF ¶¶579-589. 

iv. Unrepresentative and biased survey population. The ALJ overlooked the 

numerous ways in which Professor Novemsky’s survey population was unrepresentative and 

biased. The 607 people who completed the survey represented under five percent of the 12,239 

who began it (RPF ¶542)—a “woefully low response rate” comparable to rates courts have 

deemed insufficient to produce reliable results, In re Autozone, Inc., 2016 WL 4208200, at *17 

(N.D. Cal. Aug. 10, 2016), aff’d, 789 F.App’x 9 (9th Cir. 2019); see RB 77. Furthermore, by 

screening out respondents who qualified for Free Edition and had already filed their taxes, 

Professor Novemsky crafted a survey population that was especially unlikely to be familiar with 

TurboTax and the challenged ads, RPF ¶¶543-549, and for whom the ads were definitionally not 

material since they supposedly believed they could file for free on TurboTax and yet chose not to 

do so. His analysis also focused on respondents who had not used TurboTax for at least three 

years, meaning they were more likely to be familiar with competitors’ products and advertising, 

which likely influenced their responses. RPF ¶¶550-552. 

Finally, Professor Novemsky failed to safeguard against bias. He permitted respondents 

who completed his survey to opt out after informing them of the survey’s purpose. RPF ¶¶555-

559. Roughly 21% of participants did so, and their answers were deleted. RPF ¶557. As the 

FTC has recognized, such “transparen[cy] about the nature or purpose of a survey” is improper 

because it may “create bias in ... consumers’ decision to participate,” which “would affect the 

accuracy and validity of the information collected and effectively nullify the survey.” RPF 

32 

PUBLIC
 

FEDERAL TRADE COMMISSION | OFFICE OF THE SECRETARY | FILED 09/26/2023 OSCAR NO. 608656 -PAGE Page 40 of 101 * PUBLIC * 

¶¶558-559. The ALJ’s dismissal of this flagrant bias because the opt-out occurred at the end of 

the survey (ID 127) makes no sense. Id. 

B. The Initial Decision Is Premised On Fundamental Legal Errors 

The foregoing sections address the flaws in the ALJ’s analysis of particular evidence, but 

there are several additional, overarching problems with the ALJ’s ruling that further underscore 

that reversal is required. 

1. The ALJ imposed a heightened disclosure requirement that is both 

unsupported and infeasible 

The ALJ erred by giving the word “free” all-but-dispositive significance in advertising 

(and deception analysis). Attaching supreme significance to the word “free”—the actual price of 

the product at issue here—lacks any basis in law. The ALJ’s only support (see ID 170) were 

decades-old cases, each about a product that was advertised as “free” but was not free for 

anyone. For example, in Book-of-the-Month Club, 48 F.T.C. 1297 (1952), “[t]he use by the 

respondent of the word ‘free’ [was] false,” because “the books designated as ‘free’ [were] not ... 

without cost to the recipient,” id. at 1306. And in FTC v. Mary Carter Paint Co., 382 U.S. 46 

(1965), the advertised “can of paint was not ... ‘free,’” as the respondent was “allocating what 

[was] in fact the price of two cans to one can, yet calling one ‘free,’” id. at 48. Unlike in those 

cases, the products advertised here as free for qualifying consumers are free to those consumers; 

consumers do not have to pay Intuit anything to use any of the free products, and as explained it 

is impossible to pay to use any of them. The principle drawn from the ALJ’s cited case law— 

that “[d]isclaiming a free claim can be particularly difficult,” ID 203 (emphasis added)—is 

therefore irrelevant. Intuit did not need to disclaim its free claims; they were true. 

The ALJ nonetheless used that principle to shift the burden of proof regarding deception 

to Intuit. For instance, the ALJ held that Intuit’s evidence “fails to prove” the lack of deception, 

33 

PUBLIC
FEDERAL TRADE COMMISSION | OFFICE OF THE SECRETARY | FILED 09/26/2023 OSCAR NO. 608656 -PAGE Page 41 of 101 * PUBLIC * 

ID 203; that Intuit’s evidence “is not proof that Intuit’s current advertisements are unlikely to 

mislead,” ID 221 n.42; and that Intuit failed to “rebut” CC’s positions, ID 195, 197. Use of the 

word “free” does not license this inversion; the regulation instructing that “[c]ounsel representing 

the Commission ... shall have the burden of proof,” 16 C.F.R. §3.43(a), does not provide any 

exception for cases involving “free” claims. 

Relying further on the notion that “[d]isclaiming a free claim can be particularly 

difficult,” ID 203, the ALJ set an impracticably (and unlawfully) high bar for Intuit’s disclosures. 

Specifically, the ALJ concluded that it is not sufficient for Intuit’s digital ads “to disclose ‘the 

existence and category’ of the applicable limitations” on eligibility for its free offers while 

hyperlinking to full eligibility details. ID 220. That is a remarkable departure from existing FTC 

guidance, which provides that an ad need only disclose the “nature and relevance” of limitations, 

and that if details (including regarding “price”) “are too complex to describe adjacent to the 

[relevant] claim, those details may be provided by using a hyperlink.” GX316 at 10, A-8 (FTC, 

.com Disclosures (Mar. 2013)). That is the situation here: As the ALJ acknowledged, CC’s 

expert conceded “that the eligibility requirements to file for free ‘cannot be easily communicated 

in an ad to a reasonable consumer.’” ID 224 (emphasis omitted). But rather than applying the 

FTC guidance that approves the use of hyperlinks in precisely these circumstances, see GX316 at 

A-7, A-8, the ALJ declared that “the solution” is for Intuit to “avoid” describing its free products 

as free, ID 224. That is shocking. It is not, and certainly should not, be that the law forbids 

advertising a free product as free merely because the offer has qualifications. That would outlaw 

any hotel’s “kids stay and eat free” offer, as well as countless other free offers with which 

reasonable consumers are familiar. RPF ¶¶473-477. It would even outlaw any IRS marketing 

34 

PUBLIC
FEDERAL TRADE COMMISSION | OFFICE OF THE SECRETARY | FILED 09/26/2023 OSCAR NO. 608656 -PAGE Page 42 of 101 * PUBLIC * 

for the IRS Free File program, which describes the program as “free” without disclosing that it is 

available only to taxpayers below a certain income level. RPF ¶¶59, 278-279. 

In short, the ALJ erred in ruling that Intuit’s accurate use of the word “free” both 

necessitated impracticable disclosures and triggered a “particularly strong” legal standard, under 

which the burden of proof shifted to Intuit. ID 170; see also ID 201, 203; IDF ¶¶427-428. 

2. The ALJ improperly analyzed the ads’ components piecemeal and 

from a subjective viewpoint 

a. By analyzing the various components of the challenged ads piecemeal, the ALJ 

violated “the principle that the Commission looks to the impression made by the advertisements 

as a whole,” American Home Products, 695 F.2d at 688 (emphasis added), as well as the 

Commission’s instruction to consider “the juxtaposition of various phrases” in an ad, Policy 

Statement on Deception, 103 F.T.C. at 176. Indeed, courts have “emphasized that in reviewing 

FTC actions prohibiting unfair advertising practices,” a court “must consider the advertisement 

in its entirety and not ... engage in disputatious dissection.” S.C. Johnson & Son, Inc. v. Clorox 

Co., 241 F.3d 232, 238 (2d Cir. 2001) (quotation marks omitted; ellipsis in original; emphasis 

added). 

The initial decision flouts this judicial mandate. As noted, the challenged ads included at 

least three different types of disclosures: (1) the specific product being advertised, (2) language 

conveying that eligibility for the advertised product was limited based on the complexity of one’s 

tax return, and (3) language directing consumers to full eligibility information. In analyzing 

these disclosures, the ALJ expressly considered “each tile separately,” rather than the “entire 

mosaic,” as the law requires. S.C. Johnson & Son, 241 F.3d at 238. 

For example, as to the challenged ads’ disclosure of the specific product being advertised, 

the ALJ concluded that “without any further disclosures, the mere name of the product is 

35 

PUBLIC
FEDERAL TRADE COMMISSION | OFFICE OF THE SECRETARY | FILED 09/26/2023 OSCAR NO. 608656 -PAGE Page 43 of 101 * PUBLIC * 

unlikely to dispel a viewer’s [mis]impression” that TurboTax would necessarily be free for them. 

ID 171 (emphasis added). That conclusion is irrelevant, as there were further disclosures. As to 

the disclosure that eligibility was limited based on the complexity of one’s tax return, the ALJ 

similarly concluded that “the interjection of ‘simple tax returns’” was insufficient to qualify the 

challenged ads’ “generalized ‘free’ claim.” ID 172 (emphasis added). That conclusion is flawed 

because, as noted, the free claims were not “generalized,” but rather were expressly associated 

with specific products. Finally, the ALJ concluded that disclosures like “see details” or “see if 

you qualify” were—again, by themselves—“unlikely to alter the overall net impression of an 

advertisement.” Id. 

b. The ALJ independently erred by considering the ads and their components from 

his subjective perspective. That was improper because “[t]he deception standard is objective in 

nature.” Richards v. Direct Energy Services, LLC, 915 F.3d 88, 100 (2d Cir. 2019). 

First, the ALJ ignored critical objective evidence regarding the adequacy of the 

challenged ads’ disclosures: Professor Golder’s analysis. RPF ¶¶234-236, 258. As noted, 

Intuit’s disclosures were comparable or superior to the comparators on each of these metrics. 

RPF ¶¶237, 259. These metrics—not CC’s or the ALJ’s subjective opinions—are legally 

relevant, not least because, as CC’s expert conceded, they were drawn from FTC guidelines. 

RPF ¶927. 

Second, the ALJ disregarded the only perspective that matters: that of reasonable 

consumers. As a matter of law, “reasonable consumer[s]” are deemed to “understand[]” 

concepts that “are commonplace in the [relevant] market.” Ebner, 838 F.3d at 965. And as 

explained in section I.A.2.a, the ALJ failed to account for reasonable consumers’ familiarity with 

free offers in the online-tax-preparation market. Likewise, as explained in section I.A.2.b, he 

36 

PUBLIC
FEDERAL TRADE COMMISSION | OFFICE OF THE SECRETARY | FILED 09/26/2023 OSCAR NO. 608656 -PAGE Page 44 of 101 * PUBLIC * 

inappropriately ignored or disregarded evidence concerning market research, consumer 

complaints, consumer-experience data, consumer testimony, Mr. Deal’s TY 2021 customer-base 

analysis, and other expert analyses showing that reasonable consumers in fact were not deceived 

by the challenged ads. 

3. The ALJ relied on a doctrine that has no place here and involves 

disregarding detailed information readily available to consumers 

The ALJ erroneously relied on an antiquated and inapplicable doctrine to disregard the 

detailed disclosures provided prominently and repeatedly on the TurboTax website. That ruling 

threatens to render e-commerce advertisements absurdly complex and unworkable, for no sound 

reason. 

The ALJ acknowledged (ID 201) “that consumers must visit the TurboTax website ... to 

use TurboTax Free Edition, and that the website included additional information about the ... 

qualifications for using TurboTax Free Edition.” Indeed, Free Edition’s qualifications were at 

the top of both the TurboTax homepage and the Free Edition landing page throughout the 

relevant period. RPF ¶¶374-384, 388-398. Nevertheless, the ALJ invoked the “deceptive door 

opener” doctrine to dismiss those upfront and detailed disclosures as irrelevant. ID 200. As the 

ALJ observed at trial, the upshot of applying the door-opener theory in this case is that “it 

doesn’t matter what a consumer sees at the website”; all that matters is that the ads “induced 

[consumers] to the website.” RPF ¶467. (And yet, the ALJ never found that any of the ads here 

induced consumers to the website.) 

Intuit explained at length in its post-trial briefing why applying the door-opener doctrine 

to an online product like TurboTax is anachronistic and contrary to law, especially where the ads 

expressly incorporated the website disclosures through the “see if you qualify” disclosure. RB 

51-56; RRB 62-65. The initial decision offers no persuasive response. 

37 

PUBLIC
FEDERAL TRADE COMMISSION | OFFICE OF THE SECRETARY | FILED 09/26/2023 OSCAR NO. 608656 -PAGE Page 45 of 101 * PUBLIC * 

First, the decision ignores case law requiring that “deceptive advertising claims ... take 

into account all the information available to consumers,” Bell v. Publix Super Markets, Inc., 982 

F.3d 468, 477 (7th Cir. 2020), or at least any “information readily available to the consumer,” 

Moore v. Trader Joe’s Co., 4 F.4th 874, 882 (9th Cir. 2021). The TurboTax website was 

expressly mentioned in every challenged video and radio ad, RPF ¶¶215, 218, 222, 244, 294, 

299, and linked to directly by every other challenged ad, RPF ¶¶253-254, 269-270, 284-285. 

Moreover, CC’s 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 the qualifications for free TurboTax offers. RPF ¶790. The information 

on the website was undoubtedly “readily available to the consumer,” Moore, 4 F.4th at 882. It 

thus cannot be that “it doesn’t matter what a consumer sees at the website,” RPF ¶467.6 

Second, the ALJ ignored that the doctrine, which originated in the brick-and-mortar 

context, is inapplicable to online products like TurboTax. As Intuit explained (RB 53-54; RRB 

64-65), the door-opener concept was developed in cases about ads that either lured consumers to 

a physical facility under false pretenses, Resort Car Rental Systems, Inc. v. FTC, 518 F.2d 962, 

964 (9th Cir. 1975) (per curiam), or induced consumers to literally open their front doors so that 

salesmen could “gain entrance into [their] homes,” Encyclopaedia Britannica, Inc., 87 F.T.C. 

421, 496 (1976); see also Grolier, Inc., 99 F.T.C. 379, 383 (1982). The ALJ’s only justification 

for applying these half-century-old cases to twenty-first-century e-commerce is that “no FTC 

case has held that the deceptive door opener rule does not apply to transactions that take place 

online rather than in a brick-and-mortar store.” ID 201 (emphasis added). But neither has any 

6

 The cases cited above cannot be dismissed because they were not decided under the 

FTC Act. They were decided under state statutes that are, if anything, broader than the Act, and 

their legal principles reflect countless more cases than have been brought under the FTC Act. 

38 

PUBLIC
FEDERAL TRADE COMMISSION | OFFICE OF THE SECRETARY | FILED 09/26/2023 OSCAR NO. 608656 -PAGE Page 46 of 101 * PUBLIC * 

case held that the rule does apply online. To the contrary, courts have rejected deception claims 

(under state laws modeled on the FTC Act) in the online context where price disclosures 

occurred at the point of sale, much later than consumers see detailed information on the 

TurboTax website. See 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). The ALJ declared without explanation that these cases involved “different factual 

contexts,” ID 201, but their contexts are far more relevant than the pre-Internet cases the ALJ 

cited. 

Finally, the ALJ failed to explain why the reasons the door-opener theory was rejected in 

FTC v. DirecTV do not apply equally here. Those reasons were that (1) “nothing in [the 

challenged advertisement] contradict[ed] the true terms of [the advertiser’s] provision of 

services” and (2) the advertisement was “for a complex product” and in a constrained format, 

such that “a reasonable consumer would understand the limitations of how information is 

presented.” DirecTV, 2018 WL 3911196, at *15. So too here: Nothing in the challenged ads 

contradicted the true terms of the advertised offers. See supra section I.A.1. And as CC’s expert 

testified, “the level of information ... in the eligibility requirements” for Intuit’s free TurboTax 

offers “could not be effectively communicated in a” constrained format. RPF ¶841. 

Accordingly, more detailed disclosures would have been “out of step with what consumers” 

expect. RPF ¶845. The ALJ declared (ID 203) that “DirecTV is readily distinguishable,” but 

that assertion is unsupported. The ALJ simply provided a conclusory recitation of his own 

39 

PUBLIC
FEDERAL TRADE COMMISSION | OFFICE OF THE SECRETARY | FILED 09/26/2023 OSCAR NO. 608656 -PAGE Page 47 of 101 * PUBLIC * 

falsity holding, which was flawed, and his observation that DirecTV involved “disclos[ures] on 

the face of the advertisements themselves,” which of course describes this case as well.7 

II. THERE IS NO BASIS FOR THE PROPOSED CEASE-AND-DESIST ORDER 

A. No Cease-And-Desist Order Is Warranted 

Even if any of the challenged ads—none of which is still running, RPF ¶¶336, 803—were 

deceptive, no cease-and-desist order would be warranted. Such orders are permitted only “to 

prevent illegal practices in the future,” FTC v. Ruberoid Co., 343 U.S. 470, 473 (1952), not “to 

fasten liability on respondents for past conduct,” FTC v. Cement Institute, 333 U.S. 683, 706 

(1948). Accordingly, CC had the burden to prove that there is “some cognizable danger of 

recurrent violation, something more than [a] mere possibility.” United States v. W. T. Grant Co., 

345 U.S. 629, 633 (1953). CC did not do so. The ALJ’s decision to issue an order anyway 

failed to account for the improvement over time in the clarity of Intuit’s ads, Intuit’s intent to be 

clear with consumers and to follow the law, and the assurance provided by Intuit’s binding 

consent order with all 51 state attorneys general. 

1. The overwhelming and largely uncontested evidence of improvement in the 

clarity of Intuit’s ads belies any “cognizable danger of recurrent violation,” W. T. Grant, 345 

U.S. at 633. Over the past several years, Intuit has lessened the prominence of its “free” claims, 

RPF ¶354, increased the size and contrast of its text disclosures, RPF ¶¶355-357, and added and 

strengthened verbal disclosures, RPF ¶¶355, 359, 361-362. Copy testing confirms that these 

7

 The ALJ also asserted in a footnote (ID 204 n.31) that the TurboTax website was 

deceptive on its own, “independently of the deceptive door opener theory.” But the decision 

makes clear that CC did not meet their burden of proof on that subject. Id. The Commission 

should not credit a footnoted conclusion unsupported by any argument. In any event, even a 

cursory review of the website makes clear that it is not deceptive. See ID §II.B.7; RPF ¶¶372-

452. 

40 

PUBLIC
FEDERAL TRADE COMMISSION | OFFICE OF THE SECRETARY | FILED 09/26/2023 OSCAR NO. 608656 -PAGE Page 48 of 101 * PUBLIC * 

efforts worked: 

, RPF ¶¶702-713—the same as the share of all 

U.S. taxpayers who qualify to file for free (even though 

, RPF ¶¶705-706). The ALJ acknowledged that this 

recent testing showed “smaller percentages” of filers believing they could file for free “than 

shown by copy testing of” prior ads, but he discounted the recent testing on the ground that the 

percentages of filers it showed believed they could file for free ) was 

“not insignificant.” ID 221 n.42. The question, however, is not whether the percentage was 

large or small in an absolute sense. What matters is how the copy-testing percentage compared 

to the actual percentage of the population who qualify. And as just explained, the copy testing 

shows that the tested and actual percentages for Intuit’s current ads are extremely close. That 

strongly undercuts any conclusion that there is any realistic danger here of future section 5 

violations. In fact, CC effectively conceded that Intuit is currently complying with the laws by 

not challenging any of Intuit’s current ads as deceptive. See RPF ¶¶336, 803. 

If more were needed, “Intuit has ... ceased the ... ‘free, free, free’ video advertising 

campaign” that was the centerpiece of CC’s case. ID 216; see also ID 163. The ALJ discounted 

this voluntary cessation because it occurred “four days before the issuance of the FTC’s 

Complaint.” ID 216. But it is the FTC that decided to issue a complaint after the termination of 

the ad campaign. Moreover, the ALJ ignores that this cessation was undertaken—with great 

effort by Intuit, RPF ¶¶7-8—as soon as the Commission first articulated specific concerns with 

the ad campaign, RRB 70-71. 

41 

PUBLIC
FEDERAL TRADE COMMISSION | OFFICE OF THE SECRETARY | FILED 09/26/2023 OSCAR NO. 608656 -PAGE Page 49 of 101 * PUBLIC * 

2. Undisputed evidence of Intuit’s past and continuing intent to be fully honest and 

transparent with consumers further militates against any cease-and-desist order. CC conceded 

before trial that they lack any evidence of intent to deceive. RPF ¶175. And at trial, Intuit’s 

former and current executives consistently (and credibly) testified that the company’s values, 

goals, and business interests are inconsistent with deception. RPF ¶¶30, 33-38, 73, 167-176, 

353, 647, 769, 850-852, 860, 870. That testimony was corroborated by the instructions Intuit 

gave its ad agencies, RPF ¶¶172-173; expert testimony regarding economic incentives in the taxpreparation industry, RPF ¶¶39, 89; and case law recognizing “the importance of reputation and 

brand in driving consumer behavior in purchasing” online tax-preparation products, H&R Block, 

833 F.Supp.2d at 75. Indeed, the ALJ credited “the sincerity of Intuit’s witnesses testifying to 

Intuit’s commitment not to deceive its customers—including because of Intuit’s own business 

incentives.” ID 221. 

3. Intuit’s legally enforceable consent order with the attorneys general of all 50 

states and Washington, D.C. leaves “nothing for this court to enjoin” and thus moots this case, 

Wold v. Robart, 2018 WL 1135396, at *5 (E.D. Wis. Feb. 28, 2018). At an absolute minimum, it 

provides powerful “assurance[] of future compliance” with the FTC Act, eradicating any 

“cognizable danger” of future violation and thereby foreclosing a cease-and-desist order, TRW, 

Inc. v. FTC, 647 F.2d 942, 954 (9th Cir. 1981). The consent order bars the “free, free, free” 

video ads and any substantially similar ads. RPF ¶213. It also requires “Clear and Conspicuous” 

disclosures in all free ads, including written disclosures that not all taxpayers qualify, as well as 

corollary verbal disclosures in all video ads eight seconds or longer, RPF ¶¶809-819. There is no 

dispute that Intuit has complied with the consent order, that Intuit has charged an internal team 

42 

PUBLIC
FEDERAL TRADE COMMISSION | OFFICE OF THE SECRETARY | FILED 09/26/2023 OSCAR NO. 608656 -PAGE Page 50 of 101 * PUBLIC * 

with ensuring compliance in the future, and that all relevant Intuit employees now receive 

comprehensive training on the consent order’s provisions. RPF ¶¶821-828. 

Intuit’s post-trial reply brief explained at length why each of CC’s quibbles with the 

consent order (repeated by the ALJ, see ID 220-221) is unavailing. RRB 72-75. To summarize, 

each is inconsistent with either the FTC’s own guidance on the propriety of hyperlinks, RRB 73, 

its guidance on the context-dependent necessity of audio disclosures, id., or other recent orders, 

RBB 74, and each would make modern-day space-constrained advertising largely impossible. 

* * * 

Because the allegedly deceptive ads are no longer running, because the ads that are 

running are demonstrably improved, because Intuit’s honest intent is undisputed, and because a 

consent order with all 51 state attorneys general provides powerful assurances against future 

deception, no cease-and-desist order is warranted. 

B. The ALJ’s Order Is Inappropriate 

The ALJ’s order is especially unwarranted because it is vague, harmful, overbroad, and 

unconstitutional. 

1. A lynchpin of the ALJ’s order—provision I.B—is not “stated with clarity and 

precision” and thus is “unenforceable.” LabMD, Inc. v. FTC, 894 F.3d 1221, 1235-1236 (11th 

Cir. 2018). 

Provision I.B. requires that “[a]ll the terms, conditions, and obligations upon which 

receipt and retention of [a] ‘Free’ good or service are contingent [be] set forth Clearly and 

Conspicuously at the outset of the [free] offer so as to leave no reasonable probability that the 

terms of the offer might be misunderstood.” ID 232. Like the consent order, this provision 

requires the clear and conspicuous presentation of relevant qualifications. But unlike the consent 

order, it “says precious little about how this is to be accomplished,” LabMD, 894 F.3d at 1237. 

43 

PUBLIC
FEDERAL TRADE COMMISSION | OFFICE OF THE SECRETARY | FILED 09/26/2023 OSCAR NO. 608656 -PAGE Page 51 of 101 * PUBLIC * 

The ALJ’s response—that “[t]he terms of Section I.B appear to be as specific as the 

circumstances will permit,” ID 227 (quotation marks omitted)—is plainly wrong given the 

consent order’s far more specific terms, see RPF ¶¶810-819, and is hardly a compelling 

justification. And the ALJ’s fallback assertion—that “uncertainty may be resolved” through the 

prior-restraint provision of the Commission’s Rules of Practice, ID 226-227—is cold comfort, as 

the applicable rule allows the Commission to “at any time reconsider any advice given under this 

section and, where the public interest requires, rescind or revoke its prior advice,” 16 C.F.R. 

§2.41(e). In any event, the rule of practice does not supersede precedent requiring that any 

cease-and-desist order’s provisions be “stated with clarity and precision,” LabMD, 894 F.3d at 

1235. 

2. The ALJ’s order would not help and in fact would harm consumers. Provision 

I.B, for example, would result in “information overload” and thus be counterproductive to 

consumer understanding. RPF ¶¶138, 383, 834-835. CC never rebutted the testimony of Intuit’s 

witnesses on this subject. RPF ¶¶833, 842, 844; see RRB 83-84 (recounting testimony). As the 

ALJ acknowledged, moreover, both sides’ experts recognized a “potential to overload consumers 

with complicated information in an advertisement,” with CC’s expert confirming that “the 

eligibility requirements to file for free ‘cannot be easily communicated in an ad to a reasonable 

consumer.’” ID 224 (emphases omitted). That is especially true for space-constrained video ads 

(on TikTok, for example), in which it would be difficult to comply with the order. The ALJ 

appears to have discounted this expert consensus on the ground that “neither witness conducted 

any formal analysis using the disclosures required by the Proposed Order.” Id. That is 

unsurprising, since the proposed order’s requirements are so completely incoherent that no 

expert could be sure what to test. It is also impermissible burden-shifting; it was CC’s burden to 

44 

PUBLIC
FEDERAL TRADE COMMISSION | OFFICE OF THE SECRETARY | FILED 09/26/2023 OSCAR NO. 608656 -PAGE Page 52 of 101 * PUBLIC * 

prove their proposed order was warranted, see W. T. Grant, 345 U.S. at 633. CC failed to do so, 

offering no evidence that provision I.B would help consumers better understand free TurboTax 

advertising. RPF ¶832. 

Provision I.C, which requires Intuit to state in its ads that its free products are “not Free 

for a majority of U.S. taxpayers,” likewise would harm consumers. As Professor Golder 

explained, that provision would cause many consumers to assume—often incorrectly—that they 

do not qualify for the free TurboTax product being advertised. RPF ¶843. That is especially 

pernicious because, of consumers in the market for online tax-preparation software, most do 

qualify to file for free. RPF ¶¶129, 464; see also RPF ¶¶485-501. 

3. The ALJ’s order inappropriately encompasses products other than TurboTax. 

Any cease-and-desist order must be reasonably tethered to the challenged practice. American 

Home Products Corp. v. FTC, 695 F.2d 681, 710-711 (3d Cir. 1982). Indeed, the “concept of 

‘reasonableness’ has” often “required the narrowing of deceptive advertising orders so that they 

more closely relate to the offending conduct.” Fedders Corp. v. FTC, 529 F.2d 1398, 1402 (2d 

Cir. 1976). That is the situation here, as CC neither made allegations nor provided evidence 

concerning any product other than TurboTax. 

To be sure, courts have recognized that equitable relief can involve “some fencing in.” 

FTC v. Grant Connect, LLC, 763 F.3d 1094, 1105 (9th Cir. 2014). But the factors the ALJ 

considered—the deliberateness and history of Intuit’s conduct, see ID 229—cut against any such 

“fencing.” As discussed, see section II.A.2, the evidence shows that Intuit’s ads have improved 

and that Intuit was and remains committed to communicating clearly and honestly with 

consumers. The ALJ’s reliance on the fact that Intuit “was a defendant in numerous court cases 

claiming that Intuit’s free tax filing advertising was deceptive,” ID 229, is improper because 

45 

PUBLIC
FEDERAL TRADE COMMISSION | OFFICE OF THE SECRETARY | FILED 09/26/2023 OSCAR NO. 608656 -PAGE Page 53 of 101 * PUBLIC * 

mere “allegations are not evidence of the truth of what is alleged,” Wright v. Farouk Systems, 

Inc., 701 F.3d 907, 911 n.8 (11th Cir. 2012). The ALJ’s reliance on those cases is also 

inappropriate because many are irrelevant, and none were successful. RRF¶¶917-934. There 

was thus no sound basis for the order to reach products beyond TurboTax. 

4. Provision I.C—again, requiring Intuit to disclose that a product is “not Free for a 

majority of U.S. taxpayers”—is unconstitutional. The government may not compel commercial 

speech unless the speech is “noncontroversial” and the compulsion neither “unjustified [n]or 

unduly burdensome.” National Institute of Family & Life Advocates v. Becerra, 138 S.Ct. 2361, 

2372 (2018). Provision I.C fails both elements. First, the compelled speech is far from 

“noncontroversial,” id. As the ALJ recognized at trial, the entire taxpayer population is “pretty 

much meaningless” for measuring eligibility to use Free Edition. RPF ¶463. The more relevant 

population is taxpayers in the market for online tax preparation, and most of them do qualify to 

use TurboTax for free. RPF ¶¶129, 464. Second, imposing provision I.C on Intuit but not its 

competitors who market similar free offers, RPF ¶¶453-460, would be “unjustified or unduly 

burdensome” because it would disadvantage Intuit relative to its competitors. “[A] governmentcompelled disclosure that imposes [such] an undue burden fails for that reason alone.” American 

Beverage Ass’n v. City & County of San Francisco, 916 F.3d 749, 757 (9th Cir. 2019). The 

ALJ’s dismissal of this self-evident point on the ground that it was “unsupported by record 

evidence” again amounts to an impermissible shifting of CC’s burden to prove that their proposal 

was warranted, see W. T. Grant, 345 U.S. at 633. 

In sum, no order is warranted here, and certainly not the vague, consumer-hurting, 

overbroad, and unconstitutional one the ALJ adopted. 

46 

PUBLIC
 

FEDERAL TRADE COMMISSION | OFFICE OF THE SECRETARY | FILED 09/26/2023 OSCAR NO. 608656 -PAGE Page 54 of 101 * PUBLIC * 

III. THE PROCEEDING IS UNCONSTITUTIONAL AND UNTIMELY 

A. Constitutionality 

1. The Supreme Court has held that “an unconstitutional potential for bias” under the 

Due Process Clause inevitably exists “when the same person serves as both accuser and 

adjudicator in a case.” Williams v. Pennsylvania, 579 U.S. 1, 4, 8 (2016); see RB 117-118. Such 

bias is present here, where the Commissioners who authorized the filing of the complaint against 

Intuit are now deciding its merit. That bias is underscored by the Commission’s summarydecision order, which (1) criticized Intuit’s evidence even before Intuit had an opportunity to 

develop a record, (2) incorrectly asserted that most ads failed to mention Free Edition, and (3) 

effectively mandated the initial decision’s result. See Summary-Decision Order (Jan. 31, 2023). 

In upholding the FTC’s combination of functions, the ALJ cited (ID 211) three cases that 

all pre-date Williams. He also cited (id.) Withrow v. Larkin, 421 U.S. 35 (1975), which expressly 

recognized that a combination of functions violates due process when “the probability of actual 

bias on the part of the judge or decision-maker is too high to be constitutionally tolerable,” id. at 

47. The Commission’s unblemished record before itself is that kind of “strong sign of an 

unhealthy and biased institutional process.” RPF ¶934. 

The FTC’s current makeup exacerbates the risks posed by its unconstitutional structure 

and provides yet another reason why the Commission cannot lawfully act. The FTC was created 

as a five-member body with no more than three Commissioners from the same political party. 

15 U.S.C. §41. Humphrey’s Executor confirmed the need for the FTC to be “nonpartisan.” 295 

U.S. 602, 624 (1935); see also S. Rep. 63-597 at 22 (1914) (“[I]t was essential that the 

commission should not be open to the suspicion of partisan direction.”). The FTC’s current 

composition—three commissioners all from the same party—contravenes that statutory mandate, 

rendering any Commission action invalid. 

47 

PUBLIC
FEDERAL TRADE COMMISSION | OFFICE OF THE SECRETARY | FILED 09/26/2023 OSCAR NO. 608656 -PAGE Page 55 of 101 * PUBLIC * 

The Due Process Clause is also violated when “a disinterested observer may conclude 

that the agency has in some measure” prejudged the case. Fast Food Workers Committee v. 

NLRB, 31 F.4th 807, 815 (D.C. Cir. 2022). Intuit renews its argument, also made in its pending 

motion to disqualify, that Chair Khan’s participation in this case supports such a conclusion, and 

her continued presence taints the remaining commissioners. 

Relatedly, the ALJ erred when he denied Intuit’s motion for discovery related to the 

Commission’s prejudgment. Order Denying Respondent’s Motion for Discovery Pursuant to 

Rule 3.36 (Nov. 7, 2022). That order largely rested (id. at 6) on the incorrect notion that Chair 

Khan’s conduct was not a basis for disqualification, RB122-125. 

2. “[C]ases involving ‘private rights’” must be decided in article III courts. 

Executive Benefits Insurance Agency v. Arkison, 573 U.S. 25, 32 (2014). This case involves 

Intuit’s private right of “advertising,” which is a “core private right[],” Axon Enterprise v. FTC, 

598 U.S. 175, 198 (2023) (Thomas, J., concurring), one “integral” to Intuit’s “liberty,” 44 

Liquormart, Inc. v. Rhode Island, 517 U.S. 484, 522 (1996) (Thomas, J., concurring in part). 

Channeling claims involving private rights to administrative agencies not only violates article III, 

but also “may violate due process.” Axon, 598 U.S. at 202 (Thomas, J., concurring). The ALJ 

ignored this constitutional infirmity. See RB 118-119. 

3. The FTC’s structure contravenes article II because the Commissioners and the 

FTC’s ALJs are impermissibly insulated from presidential removal. RB 119-121. In 

disagreeing, the ALJ relied (ID 211) on Humphrey’s Executor v. United States, 295 U.S. 602 

(1935). But Seila Law v. CFPB, 140 S.Ct. 2183 (2020), “repudiated almost every aspect of 

Humphrey’s Executor,” id. at 2212 (Thomas, J., concurring in part and dissenting in part). To 

the extent Humphrey’s survives, Intuit preserves the argument that the case should be overruled. 

48 

PUBLIC
FEDERAL TRADE COMMISSION | OFFICE OF THE SECRETARY | FILED 09/26/2023 OSCAR NO. 608656 -PAGE Page 56 of 101 * PUBLIC * 

And even if it is still good law, that case blessed Commissioner tenure protection only after 

noting that the FTC “is to be nonpartisan,” 295 U.S. at 624, which is not the case today. 

As to ALJs, the ALJ acknowledged (ID 211) that “the Fifth Circuit held that the statutory 

removal restrictions for [SEC ALJs] are unconstitutional” in Jarkesy v. SEC, 34 F.4th 446, 464 

(5th Cir. 2022), cert. granted, 143 S.Ct. 2688 (2023). Yet he refused without explanation to 

extend Jarkesy to himself. No material distinction exists between the two agencies’ ALJs, see 

RB 119-120. The FTC ALJ’s double-layered removal protections are thus unconstitutional. 

4. The Commission’s unfettered discretion to proceed before either an 

administrative or an article III tribunal, see 15 U.S.C. §§45(b), 53(b), is unconstitutional, see 

Gundy v. United States, 139 S.Ct. 2116, 2123 (2019) (plurality), especially where, as here, the 

FTC already tried and failed in a neutral forum. The Fifth Circuit recently held that the SEC’s 

materially identical forum-selection delegation was unconstitutional. Jarkesy, 34 F.4th at 461. 

Again, no basis exists to distinguish Jarkesy. RB 121-122. 

The ALJ rejected Intuit’s non-delegation argument on the ground that the Commission is 

merely “exercis[ing] enforcement discretion—a traditional executive power.” ID 213. But in 

deciding whether to proceed administratively or judicially, Congress “effectively gave the 

[agency] the power to decide which defendants should receive certain legal processes (those 

accompanying article III proceedings) and which should not.” Jarkesy, 34 F.4th at 462. That 

power is one “Congress uniquely possesses.” Id. 

B. Timeliness 

This case was untimely in two respects. 

First, laches—which bars equitable relief when the plaintiff engages in “unreasonable, 

prejudicial delay in commencing suit,” Petrella v. Metro-Goldwyn-Mayer, Inc., 572 U.S. 663, 

667 (2014)—precludes the FTC from punishing Intuit for outdated ads of which the FTC has 

49 

PUBLIC
FEDERAL TRADE COMMISSION | OFFICE OF THE SECRETARY | FILED 09/26/2023 OSCAR NO. 608656 -PAGE Page 57 of 101 * PUBLIC * 

long been aware. The FTC began investigating Intuit in 2019, RPF ¶1, yet allowed nearly three 

whole tax seasons to pass before initiating an action in 2022, RPF ¶6, challenging ads that ran as 

early as 2015. The ALJ wrongly concluded (ID 209) that laches is categorically inapplicable. 

See, e.g., FTC v. DirecTV, 2015 WL 9268119, at *3 (N.D. Cal. Dec. 21, 2015); RB 116. 

Separately, ads from TYs 2014-2017 cannot support relief because they ran outside the 

three-year statute of limitations applicable to section 5 claims. When statutes (like section 5) 

lack an express limitations period, courts “‘borrow’ the most suitable statute or other rule of 

timeliness from some other source.” DelCostello v. International Brotherhood of Teamsters, 462 

U.S. 151, 158 (1983); RB 113-115. Here, analogous state and federal laws both point to a threeyear limitations period. See, e.g., Cal. Civ. Code §1783; 15 U.S.C. §57b(d). The ALJ rejected 

DelCostello because it did not involve claims brought by the government. ID 210. But if 

anything, government claims have a greater need for a limitations period, because time limits are 

“an almost indispensable element of fairness,” Rothensies v. Electric Storage Battery Co., 329 

U.S. 296, 301 (1946), and it would be “utterly repugnant to the genius of our laws” if 

government enforcement actions could “be brought at any distance of time,” Adams v. Woods, 6 

U.S. 336, 342 (1805). See RB 114-115. 

CONCLUSION 

The Commission should dismiss the complaint. 

50 

PUBLIC
 

 

FEDERAL TRADE COMMISSION | OFFICE OF THE SECRETARY | FILED 09/26/2023 OSCAR NO. 608656 -PAGE Page 58 of 101 * PUBLIC * 

September 26, 2023 Respectfully submitted, 

By: /s/ David Z. Gringer 

David Z. Gringer 

WILMER CUTLER PICKERING 

HALE AND DORR LLP 

7 World Trade Center 

250 Greenwich Street 

New York, NY 10007 

(212) 230-8800 

David.Gringer@wilmerhale.com 

Howard M. Shapiro 

Jonathan E. Paikin 

Jennifer Milici 

Daniel S. Volchok 

Derek A. Woodman 

WILMER CUTLER PICKERING 

HALE AND DORR LLP 

2100 Pennsylvania Avenue NW 

Washington, DC 20037 

(202) 663-6000 

Howard.Shapiro@wilmerhale.com 

Jonathan.Paikin@wilmerhale.com 

Jennifer.Milici@wilmerhale.com 

Daniel.Volchok@wilmerhale.com 

Derek.Woodman@wilmerhale.com 

51 

PUBLIC
FEDERAL TRADE COMMISSION | OFFICE OF THE SECRETARY | FILED 09/26/2023 OSCAR NO. 608656 -PAGE Page 59 of 101 * PUBLIC * 

Attachment A 

PUBLIC
PUBLIC FEDERAL TRADE COMMISSION | OFFICE OF THE SECRETARY | FILED 09/26/2023 OSCAR NO. 608656 -PAGE Page 60 of 101 * PUBLIC * 

UNITED STATES OF AMERICA 

BEFORE THE FEDERAL TRADE COMMISSION 

COMMISSIONERS: Lina M. Khan, Chair 

Rebecca Kelly Slaughter 

Christine S. Wilson 

Alvaro M. Bedoya 

In the Matter of: 

Docket No. 9408 

Intuit Inc., a corporation. 

SUPPLEMENTAL EXPERT REPORT OF BRUCE F. DEAL 

MARCH 9, 2023 
PUBLIC FEDERAL TRADE COMMISSION | OFFICE OF THE SECRETARY | FILED 09/26/2023 OSCAR NO. 608656 -PAGE Page 61 of 101 * PUBLIC * 

TABLE OF CONTENTS 

I. Qualification and Assignment ................................................................................................1 

II. Summary of Opinions.............................................................................................................2 

III. My Conclusions Expressed in the Deal January 2023 Report Remain 

Unchanged After Considering the CRM Data........................................................................3 

IV. The CRM Data Are Largely Irrelevant to Complaint Counsel’s Allegations 

of Widespread Deception........................................................................................................7 

A. The Vast Majority of Interactions in the CRM Data Are Unrelated to 

Complaint Counsel’s Allegations ..................................................................................9 

B. The Majority of Interactions in the CRM Data Are with Customers 

Who Filed for Free and the Number of Interactions that Mention 

“Free” in Conjunction with References to Intuit’s Marketing or 

Advertising Is Inconsistent with Complaint Counsel’s Allegations............................11 

1. Customers Who Filed Their Tax Returns for Free ................................... 13 

2. Customers Who Paid to File ..................................................................... 14 

3. Customers Who Explored TurboTax and Pursued Other 

Options...................................................................................................... 14 

4. Potential Customers and Customers with Insufficient 

Identifying Information............................................................................. 15 

Appendix A: Materials Relied Upon .......................................................................................... A-1 

Appendix B: Methodology Appendix ..........................................................................................B-1 

i 
 

 

 

 

 

 

 

 

 

 

 

 

 

 

PUBLIC FEDERAL TRADE COMMISSION | OFFICE OF THE SECRETARY | FILED 09/26/2023 OSCAR NO. 608656 -PAGE Page 62 of 101 * PUBLIC * 

I. QUALIFICATION AND ASSIGNMENT 

1. My name is Bruce Deal, and I submitted an expert report in this matter on January 13, 2023 

(“Deal January 2023 Report”).1 The Deal January 2023 Report includes a summary of my 

professional experience, my qualifications, and my assignment in this matter. 

2. In this supplemental report, I have been asked by counsel to analyze whether additional data 

produced by Intuit change any of my opinions presented in the Deal January 2023 Report. I 

have also been asked to analyze whether these data provide support for Complaint Counsel’s 

allegations of widespread deception in general.2 I understand these data were produced in 

response to a Motion to Compel submitted by Complaint Counsel.3 These data contain 

selected information “pertaining to customers and potential customers who interacted with a 

free TurboTax offer or product or service” as recorded in Intuit’s customer relationship 

management (“CRM”) databases between November 2, 2020, and January 10, 2023.4 I refer 

to these data as “CRM Data.”5 

3. A list of materials I have relied upon in forming my opinions expressed in this report are 

listed in Appendix A. In preparing my report, I have utilized the following commercially 

available computer programs: Microsoft Office, SAS, Python, and Adobe Acrobat. 

1 Expert Report of Bruce F. Deal, In the Matter of Intuit Inc., Docket No. 9408, January 13, 2023 (“Deal January 

2023 Report”). 2 Complaint, United States of America before the Federal Trade Commission in the Matter of: Intuit Inc., A 

Corporation, Docket No. 9408, March 28, 2022 (“Complaint”). 3 Order Granting Complaint Counsel’s Motion to Compel Production of Documents, In the Matter of Intuit Inc., 

Docket No. 9408, December 30, 2022. 4 Complaint Counsel’s First Requests for Production of Documents to Intuit Inc., In the Matter of Intuit Inc., 

Docket No. 9408, September 12, 2022, pp. 2–6 (“Unless otherwise specified, the time period covered by each 

request below shall be from November 1, 2020, through the date of your complete compliance with these 

requests.”; “All data pertaining to customers and potential customers who interacted with a free TurboTax offer 

or product or service, as contained in your customer relationship management database (‘CRM’), or any 

database(s) used to maintain customer and potential customer information, feedback, complaints and/or sales.”); 

CRM Data 1, INTUIT-FTC-PART3-000618568–78. 5 Approximately 1 million customer interactions with Intuit’s customer service representatives were produced. I 

describe the data in detail in Section I of Appendix B, “Methodology Appendix.” 

1 
 

 

 

 

 

PUBLIC FEDERAL TRADE COMMISSION | OFFICE OF THE SECRETARY | FILED 09/26/2023 OSCAR NO. 608656 -PAGE Page 63 of 101 * PUBLIC * 

II. SUMMARY OF OPINIONS 

4. The CRM Data do not alter my opinions as stated in the Deal January 2023 Report, and these 

additional data do not provide support for Complaint Counsel’s allegations of deception. 

5. In Section VII of the Deal January 2023 Report, I concluded that there were 510 customers 

(representing less than 1 in 100,000 of the 55.5 million tax year 2021 (“TY21”) TurboTax 

customer base) for whom Intuit’s customer data may be consistent with Complaint Counsel’s 

allegations of deception and theories of harm. After employing the same methodology to 

analyze the customer service interactions in the CRM Data, I conclude that there are still 510 

such customers. I discuss this analysis in Section III. 

6. Additional analyses of the CRM Data indicate that these data are almost entirely unrelated to 

Complaint Counsel’s allegations of deception. I discuss this in Section IV.A. 

• Only 34,706 (3.3 percent) of the 1,055,079 interactions in the CRM Data even 

mention the word “free.” 3,513 of these interactions contain implicit language that 

may be suggestive of an expectation that filing would be free and/or mention “free” 

in conjunction with references to Intuit’s marketing or advertising. Only 502 of these 

explicitly mention Intuit’s marketing or advertising, indicating a possibility that the 

customer was seeking to file for free because of Intuit’s marketing or advertising. 

Putting this result in context, only 0.05 percent of the approximately 1 million 

records in the CRM Data (or 1 in 2,100) are potentially related to Complaint 

Counsel’s allegations of deception. 

• There are hundreds of thousands of interactions in the CRM Data that appear to 

reflect ordinary course of business communication between customers or potential 

customers and Intuit’s customer service representatives providing tax and product 

support. These interactions cannot reasonably be characterized as “complaints.” 

Many refer to issues that commonly arise while using an online product or service, 

such as technical issues, or issues with logging into or navigating within a product. 

Other interactions are particular to tax preparation but are unrelated to the alleged 

deception, such as issues involving amending a tax return, printing or downloading a 

completed tax return, tracking refund status, claiming a stimulus payment, or 

2 
 

 

 

 

 

 

 

PUBLIC FEDERAL TRADE COMMISSION | OFFICE OF THE SECRETARY | FILED 09/26/2023 OSCAR NO. 608656 -PAGE Page 64 of 101 * PUBLIC * 

questions regarding specific tax forms or tax situations. None of these types of 

interactions are related to Complaint Counsel’s allegations of deception. 

7. After stratifying the interactions in the CRM Data by customer filing status, I find that the 

majority are with customers who filed their returns for free. Interactions with customers who 

filed their taxes for free, by definition, cannot support Complaint Counsel’s allegations 

deception, regardless of the content or nature of these interactions. The 3,513 interactions I 

identified that include language suggestive of an expectation that filing would be free and/or 

mention Intuit’s advertising and marketing were associated with 3,481 unique customers or 

potential customers. Excluding those who filed for free reduces this number to 1,943 

customers. Among those, only 327 customers are associated with interactions that mention 

“free” in conjunction with references to Intuit’s marketing or advertising, a tiny fraction 

relative to the million tax returns filed by customers who paid to use TurboTax products 

21, the million customers who explored TurboTax and pursued other options 

21, and the estimated million visits to the TurboTax website in TY20–21 by 

ustomers who did not proceed to log in. This is not consistent with Complaint 

 allegations of deception. I discuss this in Section IV.B. 

in TY20–

in TY20–

potential c

Counsel’s

III. MY CONCLUSIONS EXPRESSED IN THE DEAL JANUARY 2023 REPORT 

REMAIN UNCHANGED AFTER CONSIDERING THE CRM DATA 

8. In Section VI of the Deal January 2023 Report, I identified TY21 TurboTax customers 

whose experiences with TurboTax, as recorded in Intuit’s customer data, are inconsistent 

with Complaint Counsel’s allegations of deception. In Section VII of the Deal January 2023 

Report, I analyzed the remainder of the TY21 TurboTax customer base, consisting of 

approximately 1.3 million customers. The data indicated these customers had limited past 

experiences with or awareness of TurboTax paid products, that they started in Free Edition, 

encountered a required upgrade screen during the tax preparation process, and paid to use a 

TurboTax product, without purchasing other add-on services or live support.6 

These customers, representing 2.4 percent of the TY21 TurboTax customer base, are those who paid to file their 

tax returns in TY21 using TurboTax, had complex tax situation that would not qualify them for Free Edition, 

did not reveal preferences for paid features or other capabilities available in paid products, including live 

assistance, did not pay to file using TurboTax in TY19 and/or TY20, did not start their return in or encounter an 

3 

6 
 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

PUBLIC FEDERAL TRADE COMMISSION | OFFICE OF THE SECRETARY | FILED 09/26/2023 OSCAR NO. 608656 -PAGE Page 65 of 101 * PUBLIC * 

9. Using the CRM Data, I extend the analysis from the Deal January 2023 Report and crossreference the approximately 1.3 million customers from the TY21 TurboTax customer base 

with the customer service interactions in the CRM Data. I identify 8,625 interactions from 

the CRM Data associated with 7,395 customers in this group.7

 Even a cursory review of 

these interactions reveals that many of them are unrelated to Complaint Counsel’s 

allegations, and instead reflect ordinary course of business interactions between Intuit’s 

customers and its customer service representatives driven by product or tax support issues, 

such as a customer who “needed to know how to access her w2,”8 or a customer who “had 

questions about amending her return.”9 

10. Following a systematic methodology outlined in Section II of the Methodology Appendix, I 

find that only 518 of these 7,395 customers even mention the word “free” in any of their 

interactions. Note that not all of these interactions are suggestive of deception.10 For 

example, for 119 of the 518 customers, the word “free” appears only in the context of product 

names (e.g., “Free Edition”) across all of their interactions.

11 Other customers, even if they 

mention “free” outside the context of product names, have interactions that still do not relate 

upgrade screen for a paid product in TY19 and/or TY20, and did not receive a recommendation to file using a 

paid product in TY21. See Deal January 2023 Report, Section VI.C for how I arrived at the set of the 

approximately 1.3 million customers. 7 There can be multiple interactions per customer in the CRM Data. The Methodology Appendix describes my 

methodology for cross-referencing TurboTax customers in the TY20–21 Customer-Level Data with their 

interactions recorded in the CRM Data. TY21 Customer-Level Data, INTUIT-FTC-PART3-000608572; TY14– 

20 Customer-Level Data, INTUIT-FTC-PART3-000608571; CRM Data 1, INTUIT-FTC-PART3-000618568– 

78. See Methodology Appendix for additional information relevant to the CRM Data and Appendix D of the 

Deal January 2023 Report for information relevant to other data. 8 CRM Data 1, INTUIT-FTC-PART3-000618568–78, casenumber = “1483381163,” comment_body = “[...] cx 

needed to know how to access her w2. ;Verbatim: I had a I have to get my W. Two but I don’t know where 

my paper copy is. | let me just make sure it has what I need before I let you get off here with me [...].” 9 CRM Data 1, INTUIT-FTC-PART3-000618568–78, casenumber = “1490613877,” comment_body = “[...] cx 

had questions about amending her return. ;Verbatim: It just happened when I amended so I don’t know, maybe I 

did something, I don’t know but yeah. | Okay. Alright I appreciate it. I’m about to go back into it [...].” 10 See, e.g., Videotaped Deposition of Megan Baburek, In the Matter of Intuit Inc., Docket No. 9408, February 23, 

2023 (“Baburek Deposition”), 109:13–110:7 (“Q. Let’s look at an example of the ‘file for free’ search term. 

[...] And looking specifically in Column V, the comment body field, this record captures [...] following 

customer interaction, quote, ‘CX wanted to file for free so I showed her – so I showed where to go and what to 

click on.’ Did I read that correctly? A. Yes. [...] Q. Based on what you can see in the comment body field, 

would you agree that this customer is not complaining about TurboTax’s free TurboTax advertising? A. Yes.”). 11 This statistic considers interactions where the word “free” appears exclusively as a part of the following product 

names: “Free Edition,” “TTO Free,” or “IRS Free File.” See Section II.B.1 of Methodology Appendix. 

4 
 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

PUBLIC FEDERAL TRADE COMMISSION | OFFICE OF THE SECRETARY | FILED 09/26/2023 OSCAR NO. 608656 -PAGE Page 66 of 101 * PUBLIC * 

to Complaint Counsel’s allegations.

12 For example, an interaction with a customer who 

encountered “issues with processing her state return” includes the following comment: 

“Walked cx thru a few troubleshooting steps. [...] She was unable to complete because she 

had to get off the phone. She will call back tomorrow when she is free [emphasis added].”13 

Suggesting that this interaction is somehow evidence of deception—as would be true by 

focusing simply on the number of times the word “free” is mentioned within these 

interactions—is simply incorrect. 

11. I also identify customers associated with interactions that contain implicit language that may 

be suggestive of an expectation that filing would be free and/or mention “free” in conjunction 

with references to Intuit’s marketing or advertising.14 I identify 61 of the 518 customers with 

such interactions. However, again, not all of these are necessarily related to Complaint 

Counsel’s allegations. As an example, one of these interactions, with a customer who worked 

for Uber but was not sure if they qualified for Free Edition, includes the following: 

“[customer] thinks they are eligible for free edition.”15 Even though this customer may have 

expressed an aspiration to file for free, it does not appear to be an expectation explicitly 

linked to Intuit’s marketing or advertising. 

12 Baburek Deposition, 102:5–103:3 (“Q. So looking at the bottom of this free text field, do you see that the last 

two sentences in this record read, quote, ‘Please feel free to contact us again with any questions. Thank you for 

using TurboTax.’ Did I read that correctly? A. Yes. Q. So the instance of the term ‘free’ in this record is in 

connection with the phrase ‘please feel free to contact us again’; is that right? A. Yes. Q. And on its face, that 

would have nothing to do with Intuit’s free TurboTax advertising; right? A. That specific text portion, yes.”). 13 CRM Data 1, INTUIT-FTC-PART3-000618568–78, casenumber = “1486929252,” comment_body = “Cx 

having issues processing state return Cx having issues processing state return. The continue button is missing 

from the state page. Walked cx thru a few troubleshooting steps. Made sure all credit and deductions pages were 

completed. She was unable to complete because she had to get off the phone. She will call back tomorrow when 

she is free [...].” 14 This approach allows for: (i) the word “free” to appear in close vicinity—within five words—of keywords such 

as “expect,” “guarantee,” should,” “suppose,” or “think,” or their variations; or (ii) the interaction to include the 

word “free” along with keywords related to Intuit’s marketing or advertising, such as “ads,” “promotion,” 

“TV,” or similar. See Methodology Appendix, Section II.B, for details of my methodology. 15 CRM Data 1, INTUIT-FTC-PART3-000618568–78, casenumber = “1496623702,” comment_body = “[...] 

Situation: cx had questions about uber and if he could use the program. Verbatim: Yes sir. Okay. Computer. 

Okay. All right. Should enter. Alright. Are you ready for the code? | Okay perfect. so I did some delivering for 

uber but they did not give me any sort of 1099. or anything like that. They just gave me a docent and I’m 

curious how I would implement input that into into the into the system. [...] Cx thinks they are eligible for free 

edition. Walked Cx through charges.” 

5 
 

 

 

 

 

 

 

 

 

PUBLIC FEDERAL TRADE COMMISSION | OFFICE OF THE SECRETARY | FILED 09/26/2023 OSCAR NO. 608656 -PAGE Page 67 of 101 * PUBLIC * 

12. Consequently, to arrive at a set of customers associated with interactions more likely to relate 

to the alleged deception,

16 I identify the subset of the 61 customers whose interactions 

specifically mention “free” in conjunction with references to Intuit’s marketing or 

advertising, indicating a possibility that the customer was expecting to file for free because 

of Intuit’s marketing or advertising. Only 17 of the 61 customers meet these criteria. Among 

these 17 customers, one had an interaction identical to a complaint by the same customer 

previously identified by Complaint Counsel, which I already considered in the Deal January 

2023 Report.17 Setting this duplicate interaction aside to avoid double counting, I arrive at 16 

customers whose interactions with Intuit recorded in the CRM Data could be potentially 

relevant to Complaint Counsel’s allegations, and for which the CRM Data provide new 

information about these customers relative to the information I considered when filing my 

previous report. 

13. In my review of these interactions, however, even this set appears to contain interactions 

unrelated to Complaint Counsel’s allegations. For example, a customer who called “for info 

on amending return after filing and receiving form 1099-G” was advised “to go back to the 

original return ad [sic] locate the amend option,” reporting that “it was just an easy form free 

on the intuit TurboTax [emphasis added].”18 Even though the words “ad” and “free” both 

appear in the CRM interaction, the customer was seeking information on how to amend their 

tax return and the word “ad” appears to be a typo for “and.” Suggesting that this interaction is 

somehow evidence of deception—as would be true by focusing simply on the number of 

times Intuit’s marketing or advertising is mentioned within these interactions—is also 

incorrect. 

16 Complaint, ¶ 57 (“Thus, Intuit’s deceptive door-opener ads described above bring consumers to the TurboTax 

website representing that consumers can file their taxes for free using TurboTax, but once there, many 

consumers encounter screens that inform them that they cannot complete and file their taxes for free.”) and 

¶ 119 (“In numerous instances in connection with the advertising, marketing, promotion, offering for sale, or 

sale of online tax preparation products or services, Respondent represents, directly or indirectly, expressly or by 

implication, that consumers can file their taxes for free using TurboTax.”). 17 Deal January 2023 Report, ¶ 160. 18 CRM Data 1, INTUIT-FTC-PART3-000618568–78, casenumber = “1495287518,” comment_body = “Cx call 

for info on amending return Cx call for info on amending return after filing and receiving form 1099-G. Cx was 

advise to go back to the original return ad locate the amend option and res. System Generated Summary via 

ASTAR version: 1.0.2 Situation: cx filed her daughter’s taxes and realized she had unemployment income. 

;Verbatim: Okay I I filed my daughter’s taxes, it was just an easy form free on the intuit TurboTax And now 

realize she I had unemployment income that I got to amend a return [...].” 

6 
 

 

 

 

 

 

 

 

 

 

PUBLIC FEDERAL TRADE COMMISSION | OFFICE OF THE SECRETARY | FILED 09/26/2023 OSCAR NO. 608656 -PAGE Page 68 of 101 * PUBLIC * 

14. In the Deal January 2023 Report, I identified 510 TY21 customers, representing less than 1 

in 100,000 of the 55.5 million TY21 TurboTax customer base, for whom Intuit’s customer 

data may be consistent with Complaint Counsel’s allegations of deception and theories of 

harm and who provided a low PRS or customer rating, or filed a complaint identified by 

Complaint Counsel.19 I consider the 16 customers identified above in the same way. That is, I 

consider a potentially relevant interaction in the CRM Data to be equivalent to a low PRS or 

customer rating, or a complaint identified by Complaint Counsel; I also considered this 

information in the context of the entirety of the customer data available to me and that I 

analyzed in the Deal January 2023 Report. All 16 of these customers have characteristics that 

indicate their experiences as reflected in the data—such as time-to-upgrade screen, marketing 

channel, or past experience with TurboTax—were inconsistent with Complaint Counsel’s 

allegations of deception and theories of harm. Therefore, these are not incremental to the 510 

customers I identified in my previous report. Therefore, the CRM Data do not at all change 

my opinions expressed in the Deal January 2023 Report. Indeed, none of the calculations 

even change.20 

IV. THE CRM DATA ARE LARGELY IRRELEVANT TO COMPLAINT 

COUNSEL’S ALLEGATIONS OF WIDESPREAD DECEPTION 

15. The CRM Data, as I understand, pertain to customers and potential customers who interacted 

with a free TurboTax offer, product, or service.

21 Based on my analysis, and as described 

below, the CRM Data capture various types of interactions including many unrelated to 

customer complaints, such as sales or technical support.22 These data also contain customer 

19 See Deal January 2023 Report, ¶ 161. 20 Even if I treated all of these 16 interactions as additive to the 510 customers identified previously, an approach 

that I do not endorse, the number of potentially deceived TY21 customers would remain insignificant and my 

opinions would remain unchanged. 21 Complaint Counsel’s First Requests for Production of Documents to Intuit Inc., In the Matter of Intuit Inc., 

Docket No. 9408, September 12, 2022, ¶ 22 (“All data pertaining to customers and potential customers who 

interacted with a free TurboTax offer or product service, as contained in your customer relationship 

management database (“CRM”), or any database(s) used to maintain customer and potential customer 

information, feedback, complaints, and/or sales.”). 22 Complaint Counsel’s data analyst agreed that CRM database can capture various types of interactions. Baburek 

Deposition50:20–51:5 (“Q. And you mentioned customer complaints earlier as one type of data in the CRM. 

You recognize that there are other types of data in the CRM; right? A. Yes. Q. A CRM might log, for example, 

technical support calls from a customer; right? A. Yes. Q. It might log sales data or -- it might log sales to a 

customer; right? A. Yes.”). 

7 
 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

PUBLIC FEDERAL TRADE COMMISSION | OFFICE OF THE SECRETARY | FILED 09/26/2023 OSCAR NO. 608656 -PAGE Page 69 of 101 * PUBLIC * 

complaints across many topics. It is not the case that the full set of interactions in the CRM 

data, or even the full set of complaints in the CRM Data, are related to Complaint Counsel’s 

allegations.

23 However, assuming Complaint Counsel’s allegations were valid, and deception 

regarding consumers’ ability to file for free were widespread, I would expect customer 

interactions recorded in the CRM Data to include a large number of customers and potential 

customers describing that they had been deceived by Intuit’s marketing or advertising.24,25 

Below, I analyze the available CRM Data to look for evidence of the alleged widespread 

deception.

26 

23 Baburek Deposition, 56:13–57:11 (“Q. You understand that the CRM data is not limited to records of 

consumers who are complaining about Intuit’s free TurboTax advertising; right? A. Yes. Q. What is the basis 

for that understanding? A. That the records provided could complain -- could contain complaints not related to -

- specific to this case. Q. And, in fact, the records provided could include records of customer interactions that 

are not complaints at all; right? A. Okay.”). 24 I include “potential customers” in my analyses due to the fact that Complaint Counsel and their experts claim 

that even consumers who did not file using TurboTax—including consumers who did not create an account or 

even visit the TurboTax website—could have been deceived by Intuit’s advertising. Expert Rebuttal Report of 

Erez Yoeli, Ph.D., In the Matter of Intuit Inc., Docket No. 9408, January 27, 2023 (“Yoeli Rebuttal Report”), 

¶ 94 (“First, it omits the million consumers who visited turbotax.com but did not log in to an existing 

account or create a new account.”); Confidential Videotaped Deposition of Erez Yoeli, Ph.D, In the Matter of 

Intuit Inc., Docket No. 9408, February 16, 2023 (“Yoeli Depostion”), 240:25–241:18 (“Q. So you’re not saying 

that if someone saw a TurboTax ad in a particular year and didn’t go to the TurboTax website in that year that 

they were deceived? A. I’m saying it’s possible. Q. How is that they were deceived? [Objection...] A. The --

the question of deception has to do with whether the consumer’s interpretation of the ad is that TurboTax would 

be free for them and they actually don’t qualify to file for TurboTax for free, and they could have had those --

that experience without having gone to the TurboTax website.”); Expert Rebuttal Report of Nathan Novemsky, 

Ph.D., In the Matter of Intuit Inc., Docket No. 9408, January 27, 2023 (“Novemsky Rebuttal Report”), ¶ 282 

(“Mr. Deal eliminates as not likely to be deceived any consumers who came to the TurboTax website but did 

not log into or create an account, arriving at a pool of only 55.5 million TurboTax customers. This measure sets 

aside, without any reason or support, that millions of consumers who come to the TurboTax website because of 

Intuit’s “free” advertising may very well have been deceived by that marketing.”); Complaint, ¶ 35 (“Given this 

advertising, reasonable consumers may believe that the TurboTax products and services Intuit advertises as free 

are free for them – that they can file their taxes for free using TurboTax.”). 25 While these “potential consumers” would not be able to submit a customer review or provide a PRS if they did 

not use the product, they could still have reached out to Intuit’s customer support to voice their concerns, and 

these interactions would be included in the CRM Data, and would be supplemental to the data I analyzed in my 

previous report. Deposition of Bruce Deal, In the Matter of Intuit Inc., Docket No. 9408, February 15, 2023 

(“Deal Deposition”), 178:8–15 (“Q. [...] Is there anywhere in your [Deal January 2023] report that you take 

into account complaints made to Intuit’s customer service representatives? A. No. That data wasn’t available. 

And as I think I’ve described many times today, if that data were to become available, it could be done. But, no, 

I don’t -- I didn’t -- I didn’t have that data.”). 26 Deal Deposition, 173:7–174:25 (“Q. [W]ould CRM data, in your experience, potentially be another place that 

you could find evidence of consumer negative feedback? [Objection] THE WITNESS: I think we’ve had this 

discussion already. You know, the typical CRM database is sort of basically tracking -- think about every 

customer service agent you’ve ever talked to. They are typing in some notes. So it’s the customer service agent 

typing in notes into some kind of a CRM, saying, oh, I just talked to Bruce, and, you know, he loved his cable 

TV show, or whatever. So I certainly agree it’s very messy data. And, you know, I think before, we were talking 

about, is it possible that in that data, there could be someone typing in, Customer XYZ is upset about – you 

8 
 

 

 

 

 

 

 

 

 

 

 

 

PUBLIC FEDERAL TRADE COMMISSION | OFFICE OF THE SECRETARY | FILED 09/26/2023 OSCAR NO. 608656 -PAGE Page 70 of 101 * PUBLIC * 

A. The Vast Majority of Interactions in the CRM Data Are Unrelated to Complaint 

Counsel’s Allegations 

16. Many of the customer service interactions captured in the CRM Data appear to reflect 

ordinary course of business communication between customers or potential customers and 

Intuit’s customer service representatives, entirely unrelated to Complaint Counsel’s 

allegations of deception. These interactions refer to issues that commonly arise while using a 

product or service, such as technical issues, or issues with logging into or navigating within 

the product, such as customers “having issues downloading software” or “having issues with 

password.”27 Other interactions are particular to tax preparation but unrelated to the alleged 

deception, such as issues involving amending a tax return, tracking refund status, claiming 

stimulus payment, or questions regarding specific tax forms or tax situations, such as a 

customer who “had questions [a]bout his rejected return.”28 My analysis of the full CRM 

Data29 identify the following: 

• More than 346,000 interactions potentially related to inquiries after tax filing, 

including when a tax return may be audited or may need to be amended, or when 

checking on the status of a tax return; 

know, thought it was free, and it’s not -- in any kind of context; cable TV, whatever. You know, that’s a very 

common sort of generic complaint you see across a lot of things; I didn’t think I was paying for this, and why 

do I have this; I was told it was free. Things like that. So it’s certainly -- you know, within this data, there can 

be that information. For the analysis I was doing, I had a set of complaints the FTC had identified, and I had 

these actual customer reviews, which are kind of systematic and numeric and, you know, represent the actual 

experience that they had at the time, so I didn’t -- excuse me -- I didn’t have any need for the CRM data. It’s 

messy. If CRM becomes available in some form that can be used and produced in this matter, one can certainly, 

you know, use it. But my experience is, it would be -- it would be a big challenge to try and separate out any --

again, there’s just so much in there and it’s so all over the place and it’s sort of moderated through whatever the 

customer service person typed in, things like that. So there’s a lot of challenges and problems with using the 

data.”). 27 CRM Data 1, INTUIT-FTC-PART3-000618568–78, casenumber = “472061249,” comment_body = “cx having 

issues downloading software. Working with cx and AA for over a hour to get the problem fixed. Cx stopped 

replying. 1st and 2nd snippet sent.” CRM Data 1, INTUIT-FTC-PART3-000618568–78, casenumber = 

“465849342,” comment_body = “customer called in having issues with password when she gets to a computer 

she will call back to ts.” 28 CRM Data 1, INTUIT-FTC-PART3-000618568–78, casenumber = “471868586,” comment_body = “Filing 

Questions Cx had questions bout his rejected return.” 29 Interactions can belong to more than one of these categories. My methodology for identifying these interactions 

is fully described in the Methodology Appendix. 

9 
 

 

 

 

 

 

 

PUBLIC FEDERAL TRADE COMMISSION | OFFICE OF THE SECRETARY | FILED 09/26/2023 OSCAR NO. 608656 -PAGE Page 71 of 101 * PUBLIC * 

• More than 283,000 interactions potentially related to technical issues, such as 

difficulties logging in, installing or downloading software, or receiving error 

messages; 

• More than 263,000 interactions potentially related to specific issues that arise during 

the tax preparation process, mentioning COVID, crypto, stimulus payments, or 

similar subjects; 

• Approximately 170,000 interactions potentially related to the tax filing process, 

inquiring about extensions, refund amounts, or refund advances; 

• Approximately 54,000 potentially incomplete interactions, such as dropped calls or 

unresponsive chats; and 

• Approximately 13,000 interactions potentially related to products that I understand 

are not at issue in this case, including TurboTax Desktop products, Mint, or 

QuickBooks. 

17. Consistent with this result, the vast majority of interactions in the CRM Data do not mention 

the word “free.” Only 34,706 interactions, or 1 in 30, even mention the word “free.”30 This 

finding is also consistent with Complaint Counsel’s own summary exhibits of the CRM 

Data.31 By itself, these numbers illustrate the absence of evidence of widespread consumer 

deception in these data. Further, unlike Complaint Counsel’s summary exhibits, I recognize 

that simply mentioning the word “free” is not sufficient for an interaction to be relevant to 

the alleged deception.32 Similar to the analysis described above in Section III, I identified 

3,513 interactions in the CRM Data that, in addition to the word “free,” contain implicit 

language that may be suggestive of an expectation that filing would be free and/or mention 

30 My methodology is described in detail in the Methodology Appendix. 31 The two spreadsheets prepared by Ms. Baburek, “CRM_combined_wordsearch.xlsx” and 

“CRM_single_wordsearch.xlsx,” identify 34,679 and 375 observations out of the total of 1,055,079 

observations as containing the word “free.” 1,020,025 observations (96.7 percent) are not flagged as such. RX 

1374, CRM_combined_wordsearch.xlsx; RX 1376, CRM_single_wordsearch.xlsx. 32 Note that Ms. Baburek in her analysis produced by Complaint Counsel did not attempt to identify evidence of 

the alleged consumer deception. See, e.g., Baburek Deposition, 80:20–23 (“Q. Do you have a belief that this 

type of data analysis would yield results relevant to complaint counsel’s allegations in this case? A. I don’t 

know.”) and 96:18–25 (“Q. Did you attempt to validate whether the records returned in your keyword analysis 

on the search term ‘free’ were relevant to this litigation? A. No. Q. Why not? A. Because I was not told to 

review the records returned. I was told to search for ‘free’ and return all records with that.”). 

10 
 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

PUBLIC FEDERAL TRADE COMMISSION | OFFICE OF THE SECRETARY | FILED 09/26/2023 OSCAR NO. 608656 -PAGE Page 72 of 101 * PUBLIC * 

“free” in conjunction with references to Intuit’s marketing and advertising.33 Considering 

only the subset of interactions that reference Intuit’s marketing or advertising, I find 502 

interactions, representing 1 in 2,100 entries in the CRM Data, that could potentially be 

relevant to Complaint Counsel’s allegations of deception. 

18. To validate my systematic analysis, I conduct a manual review of random samples of 

interactions from the CRM Data. I sample interactions that mention “free,” and separately, 

sample interactions that do not mention “free.”34 The result of the manual review of the 

random samples is consistent with my systematic analysis. That is, (i) none of the 

interactions that do not include “free” have evidence indicating that the customer or potential 

customer had an expectation of being able to file for free because of Intuit’s marketing or 

advertising; (ii) the rate at which interactions from the random samples indicate a possibility 

that the customer was seeking to file for free because of Intuit’s marketing or advertising 

does not fundamentally differ from the rate identified through my systematic analysis.

35 

B. The Majority of Interactions in the CRM Data Are with Customers Who Filed 

for Free and the Number of Interactions that Mention “Free” in Conjunction 

with References to Intuit’s Marketing or Advertising Is Inconsistent with 

Complaint Counsel’s Allegations 

19. I also analyze the frequency of potentially relevant interactions in the CRM Data relative to 

customer filing status. I rely on the TY20–21 Customer-Level Data to identify which 

customers in the CRM Data filed for free, paid to file, or abandoned their returns. A subset of 

customers in the CRM Data have insufficient identifying information such that I cannot 

identify them in the TY20–21 Customer-Level Data. I analyze this subset separately. 

Figure 1 below summarizes the results of this analysis. Additional discussion follows. 

33 See Methodology Appendix. 34 I generate four stratified random samples from the CRM Data to ensure that I include interactions from CRM 

Data 1 and CRM Data 2, and interactions that mention “free” and interactions that do not. I instruct two 

reviewers to examine the content of these randomly selected interactions. See Section III, Methodology 

Appendix. 35 See Methodology Appendix. 

11 
FEDERAL TRADE COMMISSION | OFFICE OF THE SECRETARY | FILED 09/26/2023 OSCAR NO. 608656 -PAGE Page 73 of 101 * PUBLIC * 
 

 

 

 

 

 

 

 

 

 

 

 

 

PUBLIC FEDERAL TRADE COMMISSION | OFFICE OF THE SECRETARY | FILED 09/26/2023 OSCAR NO. 608656 -PAGE Page 74 of 101 * PUBLIC * 

[G] I manually review interactions that have implicit language suggestive of an expectation of filing for free and/or 

explicit reference to Intuit’s marketing or advertising that are associated with customers or potential customers with 

insufficient identifying information, and as a result, cannot be identified in the TY20–21 Customer-Level Data. 

Upon review, interactions indicating that their inquiry was related to TurboTax Desktop products or filing of 

Canadian tax returns are excluded. 

1. Customers Who Filed Their Tax Returns for Free 

20. I identify 557,452 interactions (or 52.8 percent of the total interactions in the CRM Data) 

associated with 443,717 customers who filed a tax return for free using TurboTax in the same 

tax year as their interaction in the CRM Data.

37 Complaint Counsel admitted, and their 

experts affirmed, that TurboTax Free Edition is a “truly free”38 product and that customers 

who filed for free were unlikely to have been deceived, since they received exactly what the 

at-issue marketing campaign advertised.

39 These interactions are thus not relevant as they 

cannot provide evidence of the alleged consumer deception, regardless of the content or 

nature of the interaction.40 

FTC-PART3-000608572; TY19–20 Upgrade Screen Data, INTUIT-FTC-PART3-000608573; TY21 Upgrade 

Screen Data, INTUIT-FTC-PART3-000608574; TY21 Upgrade Screen Categorization, INTUIT-FTC-PART3-

000608570; TY21 Customer Reviews, INTUIT-FTC-PART3-000490341; TY21 Customer Review ID 

Crosswalk, INTUIT-FTC-PART3-000608569; Complainant Tax History Data, INTUIT-FTC-PART3-

000608568. 37 Consistent with my approach in the Deal January 2023 Report, these customers could have filed their federal 

and/or state tax return for free using either Free Edition or another product. 38 The Bureau of Competition conceded under oath that TurboTax Free Edition is also “truly free” for those who 

qualify. See Videotaped Deposition of William T. Maxson, In the Matter of Intuit Inc., Docket No. 9408, 

December 8, 2022 (“Maxson Deposition”), CC-00005358 at 279:6-18 (“Q. Right. And TurboTax Free Edition 

is truly free for the people who qualify to use TurboTax Free Edition, correct? A. Yes. I believe TurboTax Free 

Edition product TurboTax or free edition SKU is free for consumers that qualify under the TurboTax terms and 

conditions. Q. Not just free, but by the definition used in the complaints it’s – TurboTax Free Edition is truly 

free for those who quali[f]y, correct? A. For those who qualify, yes, I think it would be fair to say truly free.”). 39 See, e.g., Novemsky Rebuttal Report, ¶ 197 (“[C]onsumers [...] were not deceived because they were eligible 

to file their taxes for free with TurboTax”); Yoeli Rebuttal Report, ¶ 27 (“[T]here is [...] one category of 

consumers for whom deception was unlikely in the tax year 2021: those who filed their federal and state taxes 

with TurboTax for free in tax year 2021.”) 40 Ms. Baburek did not filter out in her keyword analysis record instances of interactions with customers who filed 

for free. See, e.g., Baburek Deposition, 100:4–10 (“Q. [...] You did not attempt to filter out from your keyword 

analysis records where the customer, in fact, did file for free using TurboTax Free Edition; right? A. I did not 

filter out any of the data.”); Baburek Deposition, 116:21–25 (“Q. You also didn’t attempt to identify which 

consumers in the CRM data filed for free, using TurboTax; correct? A. Correct. I just used the word searches to 

identify rows.”). 

13 
 

 

 

 

 

 

 

 

 

 

 

PUBLIC FEDERAL TRADE COMMISSION | OFFICE OF THE SECRETARY | FILED 09/26/2023 OSCAR NO. 608656 -PAGE Page 75 of 101 * PUBLIC * 

2. Customers Who Paid to File 

21. I identify 209,975 interactions (or 19.9 percent of the total interactions in the CRM Data) 

associated with 194,547 customers who paid to file a tax return using TurboTax.41 7,229 of 

these customers are associated with interactions that mention “free” and of these, 970 

customers are associated with interactions that contain implicit language that may be 

suggestive of an expectation that filing would be free and/or mention “free” in conjunction 

with references to Intuit’s marketing or advertising. Only 165 of these are associated with 

interactions that mention Intuit’s marketing or advertising. Of the million customers 

who paid to file using TurboTax in TY20–21, this represents approximately 

customers associated with such interactions. This evidence is inconsistent with Complaint 

Counsel’s allegations that customers were deceived into filing their tax return using a paid 

product.42 

3. Customers Who Explored TurboTax and Pursued Other Options 

22. I identify 141,591 interactions (or 13.4 percent of the total interactions in the CRM Data) 

associated with 128,406 customers who explored TurboTax and pursued other options in the 

same tax year as their interaction in the CRM Data. 5,781 of these customers are associated 

with interactions that mention “free,” and of these, 646 customers are associated with 

interactions that contain implicit language that may be suggestive of an expectation that 

filing would be free and/or mention “free” in conjunction with references to Intuit’s 

marketing or advertising. Only 98 of these customers are associated with interactions that 

mention Intuit’s marketing or advertising. This represents approximately 

customers among the million customers who logged in to their TurboTax account but 

pursued other options, as indicated by abandoning or not even starting a TurboTax return in 

TY20–21. This evidence is also inconsistent with Complaint Counsel’s allegations of 

41 These interactions contain the 8,625 interactions I included in my analysis in Section III. Note that while 8,625 

interactions indicated in Section III are among the 1.3 million TY21 customers at risk of potential deception at 

the time they filed their TY21 taxes, these 209,975 interactions are associated with 

file in TY20–21 ( 

all customers who paid to 

million). 42 As I note in the Deal January 2023 Report, there is also evidence in Intuit’s customer data, for this and other 

categories of customers, inconsistent with Complaint Counsel’s allegations of deception for the vast majority of 

TurboTax customers and there are no data supporting claims that Intuit’s alleged deception resulted in 

customers using TurboTax paid products in TY21 as alleged by Complaint Counsel. See Deal January 2023 

Report, Sections VI and VII. 

14 
 

 

 

 

 

 

 

 

 

PUBLIC FEDERAL TRADE COMMISSION | OFFICE OF THE SECRETARY | FILED 09/26/2023 OSCAR NO. 608656 -PAGE Page 76 of 101 * PUBLIC * 

deception and directly contradicts the opinions offered by Dr. Yoeli in his report and 

deposition regarding these customers.43 

4. Potential Customers and Customers with Insufficient Identifying Information 

23. Continuing with the same logic, I identify 146,061 interactions (or 13.8 percent of the total 

interactions in the CRM Data) associated with 136,865 customers or potential customers who 

have insufficient identifying information to categorize them by the filing status. For some of 

these interactions, the customer information provided does not match any tax return in the 

relevant year, while others simply do not contain sufficient information to identify the 

customer in the TY20–21 Customer-Level Data. I discuss each of these two sub-groups 

below. 

a. Customers Who Did Not File a TurboTax Online Return in the Same Tax 

Year as Their Interaction in the CRM Data 

24. I identify 70,092 interactions (or 6.6 percent of the total interactions in the CRM Data) for 

which the customer information provided does not match any completed or abandoned tax 

return in the TY20–21 Customer-Level Data. There are many reasons why this could occur. 

For instance, the interactions could have occurred with customers who forgot their password 

and failed to log into their account; with customers reaching out regarding products not at 

issue, such as TurboTax Desktop, QuickBooks, or Mint, or other products not captured in the 

TY20–21 Customer-Level Data; with customers with multiple accounts; or with customers 

who interacted with TurboTax only after June 10, 2022 and thus are not captured in the 

43 Dr. Yoeli argues that the behavior of customers who logged into their TurboTax accounts but pursued other 

options is consistent with alleged deception. See Yoeli Rebuttal Report, ¶ 101 (“[T]he behavior of these 

customers is in line with what one would expect from deceived customers: they log on to TurboTax, and upon 

potentially discovering they were deceived, some leave before paying to file their taxes”). See also Yoeli 

Rebuttal Report, ¶ 108 (“The bottom line is, for the million consumers that Mr. Deal says could not have 

been deceived because they explored TurboTax but pursued other options: they could have faced high switching 

costs, they could have been deceived, and in fact, they behaved in line with consumers who were deceived.”); 

Yoeli Depostion, 319:3–15 (“Q. [...] how many [...] of the million customers who started in what Mr. Deal 

calls a free TurboTax product and subsequently did not file their tracking with TurboTax, did not qualify to file 

their taxes for free using TurboTax? A. I did not look at that. Q. You write it is possible that these customers 

came to the TurboTax’s website expecting to file their taxes for free and on discovering that was the case left 

TurboTax; right? A. I do write that.”). For the reasons stated in the Deal January 2023 Report, I disagree. 

15 
 

 

 

 

 

 

 

 

 

 

PUBLIC FEDERAL TRADE COMMISSION | OFFICE OF THE SECRETARY | FILED 09/26/2023 OSCAR NO. 608656 -PAGE Page 77 of 101 * PUBLIC * 

TY20–21 Customer-Level Data.44 These 70,092 interactions are associated with 60,896 

customers or potential customers.45 

25. Within this subset, 2,055 of these customers or potential customers are associated with 

interactions that mention “free.” 185 of these customers or potential customers are associated 

with interactions that contain implicit language that may be suggestive of an expectation that 

filing would be free and/or mention “free” in conjunction with references to Intuit’s 

marketing or advertising. Only 30 of these customers or potential customers are associated 

with interactions that mention Intuit’s marketing or advertising.46 

b. Potential Customers and Customers with Insufficient Identifying 

Information 

26. I also identify 75,969 interactions (or 7.2 percent of the total interactions in the CRM Data) 

that do not contain sufficient identifying information to link the customers involved to the 

TY20–21 Customer-Level Data. Again, there are several reasons why this could—and did— 

occur. For instance, these could be interactions that occurred with customers before they 

created their TurboTax accounts, with customers who provided incomplete information, with 

customers who dropped the call, with potential customers who did not proceed to log in to 

TurboTax, with customers using other products such as TurboTax Desktop; or these could be 

the result of data limitations in the CRM database.

47 For example: 

• A non-Intuit customer called after receiving texts with a TurboTax security code 

because they were “worried there might be a potential security issue.”48 

44 As discussed in my January 2023 Report, the TY21 Customer-Level Data only contain TurboTax Online returns 

initiated through June 10, 2022. Customer interactions in CRM Data are logged through January 10, 2023. 45 See Methodology Appendix, Section I. 46 These counts exclude customers or potential customers with insufficient identifying information that would 

allow me to locate them in the TY20–21 Customer-Level Data whose interactions indicated that their inquiry 

was related to TurboTax Desktop products or filing of Canadian tax returns. 47 Note that the fact that a customer cannot be mapped to TY20–21 Customer-Level Data does not imply that this 

customer did not use TurboTax or did not proceed to logging into their account. 48 CRM Data 1, INTUIT-FTC-PART3-000618568–78, casenumber = “150954054,” comment_body = “[...] Yes, 

I’m calling you because I’m worried there might be a potential security issue in the last 20 minutes or so I’ve 

received three texts that I did not request Two of them are supposedly TurboTax codes that are six digit nbers. 

| And then I got one that says your intuit code is a six digit nber. And I am as far as I know, I’m not a TurboTax 

customer or an intuit customer. I’m wondering if some buddy is trying to, you know, use my information to 

steal it from you [...].” 

16 
 

 

 

 

 

 

 

 

 

 

 

PUBLIC FEDERAL TRADE COMMISSION | OFFICE OF THE SECRETARY | FILED 09/26/2023 OSCAR NO. 608656 -PAGE Page 78 of 101 * PUBLIC * 

• A mother called on behalf of her son “to see if her son’s taxes were accepted.”49 

• A first-time tax filer asked if their “best option [is] to use the free live help.”50 

• A desktop product user reached out to seek help to “download CD to Windows 

computer.”51 

27. Within this subset, 2,097 of these customers or potential customers are associated with 

interactions that mention “free.” 142 of these customers or potential customers are associated 

with interactions that contain implicit language that may be suggestive of an expectation that 

filing would be free and/or mention “free” in conjunction with references to Intuit’s 

marketing or advertising. Only 22 of these customers or potential customers had interactions 

that mention Intuit’s marketing or advertising.52 

c. There Are Very Few Interactions in the CRM Data from Potential 

Customers and Customers with Insufficient Identifying Information 

28. One of the critiques raised by Complaint Counsel and its experts is that perhaps a large 

number of consumers are deceived into believing they would be able to file for free, but 

realized before even logging in or creating an account that they do not qualify for TurboTax 

Free Edition.

53 Even though the situations of these potential customers are not consistent 

49 CRM Data 1, INTUIT-FTC-PART3-000618568–78, casenumber = “1489029692,” comment_body = “[...] 

Situation: cx called in to see if her son’s taxes were accepted. ;Verbatim: And you need to anybody. I wanted to 

speak on behalf of the taxes that I I owe. Tell him, can I speak to you? | We spoke on the [PII] because he did 

his taxes, he didn’t get a chance to show me. So I can I told him don’t put them in before, let me check them to 

see because I’m training him on how to do this. He has to learn so I don’t know what happened it went through. 

[...]” 50 CRM Data 1, INTUIT-FTC-PART3-000618568–78, casenumber = “469679189,” subject = “[...] I am filing 

taxes for the first time by myself and I have to file for two states, is my best option to use the free live help?” 51 CRM Data 1, INTUIT-FTC-PART3-000618568–78, casenumber = “476821839,” comment_body = “[...] Cx is 

unable to download CD to Windows computer. Says when he enters CD, nothing happens. Walked him thru 

settings to disable but cx states that he is unable to make any changes (nothing allows him to click on it). Tried 

enabling firewall to allow app access but unable to make those changes.. [...] Sent free download version to 

email confirmed on acct.” 52 These counts exclude customers or potential customers with insufficient identifying information that would 

allow me to locate them in the TY20–21 Customer-Level Data whose interactions indicated that their inquiry 

was related to TurboTax Desktop products or filing of Canadian tax returns. 53 See, e.g., Yoeli Rebuttal Report, Section VI.A. See also Novemsky Rebuttal Report, ¶ 283 (“As an initial 

matter, Mr. Deal eliminates as not likely to be deceived any consumers who came to the TurboTax website but 

did not log into or create and [sic] account [...]. This measure sets aside, without any reason or support, that 

millions of consumers who come to the TurboTax website because of Intuit’s ‘free’ advertising may very well 

have been deceived by that marketing.”). Deal Deposition, 93:5–23 (“Q. A consumer who saw an Intuit ad but 

didn’t log into their account is excluded from your analysis; right? A. I mean, I don’t know if I would say 

17 
 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

PUBLIC FEDERAL TRADE COMMISSION | OFFICE OF THE SECRETARY | FILED 09/26/2023 OSCAR NO. 608656 -PAGE Page 79 of 101 * PUBLIC * 

with deception (i.e., causing them any injury due to spending money or even spending 

meaningful time on the website because they did not even get to the point of logging in),54 

Complaint Counsel has posited that they may still be deceived.55 I disagree with this 

conception of deception because, as explained in the Deal January 2023 Report, the 

TurboTax website directs consumers to the “Products & Pricing” page, where potential 

customers encounter the product lineup and other information and interactive tools that allow 

them to learn about the TurboTax products.56 The challenged ads expressly invited 

consumers to “see if you qualify” at the TurboTax website and, as Dr. Yoeli conceded in his 

deposition, qualifying information about TurboTax Free Edition is accessible in a matter of 

seconds.57 

excluded in the sense that I am aware of them; I talk about them; they’re in the funnel; there’s, you know, 

whatever it is, million people -- or million interactions. We don’t have an AUTH ID for them, so... So I’m 

aware of them, but I – they’re not customers. They haven’t even gone through the step of actually even creating 

an account. So if you have an expectation of getting it for free and then you don’t even bother to create an 

account, that seems inconsistent with an expectation. It might be an interest; oh, gosh, that’s interesting; I 

wonder if I qualify for that. So exploration, lots of reasons why people look at websites there, but it doesn’t -- it 

is not consistent with having an expectation of filing for free.”). 54 Yoeli Depostion, 50:7–51:4 (“Q. And in your definition of deception does that concept of materiality play a 

role? A. I have not focused on that in describing my definition of deception to you obviously you don’t look at 

deception if you don’t think it matters, so I guess there is a two step process one looks at deception when you 

think it matters and then one applies that definition. Q. If someone shows up at the TurboTax website expecting 

TurboTax to be free from them and before they begin preparing their taxes, finds out that it is not free for them, 

how is that consumer harmed? A. The main issue for a consumer like that that you’ve just described -- this is 

somebody who does not actually file with TurboTax. -- is that they now have a less clear picture of what’s 

going on in the market. It makes it harder for them to rely on advertising claims in general and make a decision 

as to which product that they’re going to use.”) 55 Yoeli Rebuttal Report, ¶ 94 (“First, it omits the million consumers who visited turbotax.com but did not 

log in to an existing account or create a new account.”); Yoeli Depostion, pp. 240–241 (“Q. So you’re not 

saying that if someone saw a TurboTax ad in a particular year and didn’t go to the TurboTax website in that 

year that they were deceived? A. I’m saying it’s possible.”); Novemsky Rebuttal Report, ¶ 282 (“Mr. Deal 

eliminates as not likely to be deceived any consumers who came to the TurboTax website but did not log into or 

create an account, arriving at a pool of only 55.5 million TurboTax customers. This measure sets aside, without 

any reason or support, that millions of consumers who come to the TurboTax website because of Intuit’s “free” 

advertising may very well have been deceived by that marketing.”); Complaint, ¶ 35 (“Given this advertising, 

reasonable consumers may believe that the TurboTax products and services Intuit advertises as free are free for 

them – that they can file their taxes for free using TurboTax.”). 56 Deal January 2023 Report, ¶ 68. 57 Yoeli Depostion, 34:1–35:5 (“Q. Fair enough. Did it take you a long time from typing in ‘TurboTax’ to get to 

that web page? A. No. Q. In fact, it was a matter of seconds from typing ‘TurboTax’ into my phone to arriving 

at the web page where you’re currently -- where you currently are; correct? A. Yes, it took a few seconds. Q. 

And at the top of the page, do you see something -- at the top of page where you are on my cell phone, do you 

see something that says, ‘See if you qualify’? A. I mean, I do now. Q. Okay. And click on, if you don’t mind, 

‘See if you qualify.’ A. Okay. Q. Did what do you see now? A. There’s a pop-up, and it says what qualifies is a 

simple tax return. Q. How long did it take from getting to the top of the web page to seeing the pop-up? A. 

Minus all the questions? Q. Minus the questions. A. Probably a -- I don’t know -- ten – five to ten seconds, 

18 
 

 

 

 

 

 

 

 

 

 

PUBLIC FEDERAL TRADE COMMISSION | OFFICE OF THE SECRETARY | FILED 09/26/2023 OSCAR NO. 608656 -PAGE Page 80 of 101 * PUBLIC * 

29. Such a framework suggests that Intuit might have deceived consumers but only to then 

educate them about the potential costs without collecting any payment. Deceiving masses of 

potential customers without monetizing those interactions hardly seems like a rational 

business strategy. Similarly, if it did occur, one would expect to observe such aggrieved 

consumers calling Intuit’s customer representatives to complain about the deception. These 

consumers, who according to Dr. Yoeli “could have been deceived,”58 would not have 

identifying customer information in the CRM Data. As discussed above, there are a total of 

146,061 interactions associated with 136,865 customers or potential customers with 

insufficient identifying information to be categorized by the filing status of the customers 

involved.59 A total of 4,152 of these customers or potential customers are associated with 

interactions that mention “free,” and 327 among them are associated with interactions that 

contain implicit language that may be suggestive of an expectation that filing would be free 

and/or mention “free” in conjunction with references to Intuit’s marketing or advertising.60 

Only 52 of these customers are associated with interactions that mention Intuit’s marketing 

or advertising, which could potentially be related to the alleged deception.61 

30. A simple calculation demonstrates that this number of customers is miniscule relative to the 

number of visits to the TurboTax website. Employing Dr. Yoeli’s approach to calculating the 

number of bounced visits to the TurboTax website in TY21 (i.e., visits that did not result in a 

customer logging in or in an account being created as the difference between the 

million who visited the website and 55.5 million who logged in) results in million 

visits.62,63 These data are not available for TY20, so I double this number to create a rough 

assuming somebody actually does click on ‘See if you qualify’ and notices it, because until you asked me, I 

didn’t see it.”). 58 Yoeli Rebuttal Report, ¶ 94 (“This omits a large number of consumers who could have been deceived by 

Intuit’s ads. First, it omits the million consumers who visited turbotax.com but did not log in to an existing 

account or create a new account.”). 59 146,061 is calculated as the sum of 70,092 (reported in Section IV.B.4.a) and 75,969 (reported in Section 

IV.B.4.b). 60 I also removed from this group customers or potential customers whose interactions indicated that their inquiry 

related to TurboTax Desktop products or filing of Canadian tax returns. 61 These statistics are calculated as the sum of the corresponding figures reported in Sections IV.B.4.a and 

IV.B.4.b. 62 Yoeli Rebuttal Report, Table 1. 63 I note that the calculations in the Yoeli Rebuttal Report referring variously to million or million are 

incorrect, as 55.5 See, e.g., Yoeli Rebuttal Report, ¶ 94 (“First, it omits the

 million consumers who visited turbotax.com but did not log in to an existing account or create a new 

19 
 

 

PUBLIC FEDERAL TRADE COMMISSION | OFFICE OF THE SECRETARY | FILED 09/26/2023 OSCAR NO. 608656 -PAGE Page 81 of 101 * PUBLIC * 

estimate of the number of bounced visits to the TurboTax website in TY20 and TY21. If one 

were to attribute all 52 customers associated with such interactions to the estimated 

million bounced website visits for TY20 and TY21, the result would be that approximately 

in million website visits. The miniscule number of these complaints is inconsistent with 

the allegations of deception. 

____________________________ 

Bruce Deal 

March 9, 2023 

account.”). See also Yoeli Rebuttal Report, ¶ 98 (“Specifically, he omits the more than million customers in 

row [2] and begins his analysis with row [3]”). 

20 
 

PUBLIC FEDERAL TRADE COMMISSION | OFFICE OF THE SECRETARY | FILED 09/26/2023 OSCAR NO. 608656 -PAGE Page 82 of 101 * PUBLIC * 

APPENDIX A 

Materials Relied Upon 

Legal Documents 

Complaint Counsel’s First Requests for Production of Documents to Intuit Inc., In the Matter of 

Intuit Inc., Docket No. 9408, September 12, 2022. 

Complaint Counsel’s Supplemental Responses to Intuit’s First and Second Set of Interrogatories, 

In the Matter of Intuit Inc., Docket No. 9408, December 22, 2022 and attachments. 

Complaint, United States of America before the Federal Trade Commission in the Matter of: 

Intuit Inc., A Corporation, Docket No. 9408, March 28, 2022. 

Confidential Videotaped Deposition of Erez Yoeli, Ph.D, In the Matter of Intuit Inc., Docket No. 

9408, February 16, 2023 

Deposition of Bruce Deal, In the Matter of Intuit Inc., Docket No. 9408, February 15, 2023. 

Expert Rebuttal Report of Erez Yoeli, Ph.D., In the Matter of Intuit Inc., Docket No. 9408, 

January 27, 2023. 

Expert Rebuttal Report of Nathan Novemsky, Ph.D., In the Matter of Intuit Inc., Docket No. 

9408, January 27, 2023. 

Expert Report of Bruce F. Deal, In the Matter of Intuit Inc., Docket No. 9408, January 13, 2023. 

Order Granting Complaint Counsel’s Motion to Compel Production of Documents, In the Matter 

of Intuit Inc., Docket No. 9408, December 30, 2022. 

Videotaped Deposition of Megan Baburek, In the Matter of Intuit Inc., Docket No. 9408, 

February 23, 2023. 

Videotaped Deposition of William T. Maxson, In the Matter of Intuit Inc., Docket No. 9408, 

December 8, 2022, CC-00005358. 

Data 

Complainant Tax History Data, INTUIT-FTC-PART3-000608568. 

CRM Data 1, INTUIT-FTC-PART3-000618568–78. 

CRM Data 2, INTUIT-FTC-PART3-000618579 - Deal. 

INTUIT-FTC-PART3-000618579. 

RX 1374, CRM_combined_wordsearch.xlsx. 

RX 1376, CRM_single_wordsearch.xlsx. 

TY14–20 Customer-Level Data, INTUIT-FTC-PART3-000608571. 

TY19–20 Upgrade Screen Data, INTUIT-FTC-PART3-000608573. 

TY21 Customer Review ID Crosswalk, INTUIT-FTC-PART3-000608569. 

TY21 Customer Reviews, INTUIT-FTC-PART3-000490341. 

TY21 Customer-Level Data, INTUIT-FTC-PART3-000608572. 

TY21 Upgrade Screen Categorization, INTUIT-FTC-PART3-000608570. 

TY21 Upgrade Screen Data, INTUIT-FTC-PART3-000608574. 

A-1 
PUBLIC FEDERAL TRADE COMMISSION | OFFICE OF THE SECRETARY | FILED 09/26/2023 OSCAR NO. 608656 -PAGE Page 83 of 101 * PUBLIC * 

Public Documents 

@SenWarren, “Intuit Has Raked in Billions by Tricking Americans into Paying for Tax Filing 

Serviecs That Should Be Free,” May 4, 2022, 

https://twitter.com/SenWarren/status/1522026666603819008, accessed March 9, 2023. 

Frankel, Alison, “Intuit Defends $40 Million Class Settlement, Attacks Mass Arbitration Firm,” 

Reuters, December 9, 2020, https://www.reuters.com/article/legal-us-otc-intuit/intuitdefends-40-million-class-settlement-attacks-mass-arbitration-firm-idUSKBN28J34A, 

accessed March 9, 2023. 

Frankel, Alison, “Judge Breyer Rejects $40 Million Intuit Class Settlement Amid Arbitration 

Onslaught,” Reuters, December 22, 2020, 

https://www.reuters.com/article/idUSKBN28W2M5, accessed March 9, 2023. 

Root, Tik, “Why Are Millions Paying Online Tax Preparation Fees When They Don’t Need 

To?,” ProPublica, June 18, 2018, https://www.propublica.org/article/free-file-online-taxpreparation-fees-intuit-turbotax-h-r-block, accessed March 9, 2023. 

State of California Office of the Attorney General, Press Release, “Attorney General Bonta 

Announces Nationwide Settlement Against Intuit for Deceptive Advertising of “Free” 

TurboTax Products,” May 4, 2022. https://oag.ca.gov/news/press-releases/attorneygeneral-bonta-announces-nationwide-settlement-against-intuit-deceptive, accessed March 

9, 2023. 

Internal Intuit Documents 

Intuit, “FY’22 KPI Book,” March 2, 2022, INTUIT-FTC-PART3-000485269. 

A-2 
PUBLIC FEDERAL TRADE COMMISSION | OFFICE OF THE SECRETARY | FILED 09/26/2023 OSCAR NO. 608656 -PAGE Page 84 of 101 * PUBLIC * 

APPENDIX B 

Methodology Appendix 

This Methodology Appendix provides details for the analyses presented in the expert report. 

Section I describes the underlying datasets used in analyses. Section II documents the 

methodology used to identify potentially relevant or potentially irrelevant interactions in the 

data. Section III describes manual review of random samples to validate my systematic analysis. 

Table of Contents 

I. Data Summary ........................................................................................................................2 

A. CRM Data 1 ...................................................................................................................2 

1. Data files: INTUIT-FTC-PART3-000618568–78 .................................................. 2 

2. Data Description ..................................................................................................... 2 

3. Examples of Data (20 Entries)................................................................................ 3 

B. CRM Data 2 ...................................................................................................................4 

1. Data files: INTUIT-FTC-PART3-000618579 – Deal............................................. 4 

2. Data Description ..................................................................................................... 4 

3. Examples of Data (20 Entries)................................................................................ 5 

C. Identifying the Unique Number of Customers in the CRM Data ..................................6 

II. Methodology to Identify Potentially Relevant and Potentially Irrelevant 

Interactions..............................................................................................................................7 

A. Keywords Unlikely to Be Related to Complaint Counsel’s Allegations.......................8 

B. Interactions Potentially Relevant to Complaint Counsel’s Allegations.........................9 

1. Interactions That Mention “Free” ........................................................................... 9 

2. Interactions That Contain Implicit Language That May Be Suggestive 

of an Expectation That Filing Would Be Free ...................................................... 12 

3. Interactions That Reference Advertising .............................................................. 13 

III. Manual Review of Random Samples....................................................................................14 

B-1 
 

 

 

 

 

 

 

 

 

PUBLIC FEDERAL TRADE COMMISSION | OFFICE OF THE SECRETARY | FILED 09/26/2023 OSCAR NO. 608656 -PAGE Page 85 of 101 * PUBLIC * 

I. DATA SUMMARY 

[1] I understand that Intuit produced data contained in its customer relationship management 

(“CRM”) database in response to a Motion to Compel submitted by Complaint Counsel.1 These 

data include information on interactions between Intuit’s customer service representatives and 

customers or potential customers who interacted with a free TurboTax offer, product, or service, 

from November 2, 2020 to January 10, 2023, based on information in createddate.

2 I describe 

below each data file I used for my analyses. 

A. CRM Data 1 

1. Data files: INTUIT-FTC-PART3-000618568–78 

2. Data Description 

[1] I refer to data contained in INTUIT-FTC-PART3-000618568–78 as the “CRM Data 1.” 

These data include categorizations, descriptions, and summaries of the interactions. 

[2] Each row in the CRM Data 1 represents a customer interaction, uniquely identified by the 

casenumber variable. In total, the dataset contains 1,054,585 observations. Multiple interactions 

can be associated with the same customer (as determined auth_id__c or other personally 

identifiable information such as name, email, and phone) in the same or in different tax years.3 

[3] Each column in the dataset represents a variable that describes information associated with a 

particular interaction. The dataset contains information on the following: 

• Personally identifiable information: contact_mailing_address__c, 

encoded_contact_first_name__c, contact_email__c, allemails__c, name, email, phone, 

mobilephone, homephone, mobilephone1 

• Other identifiers: casenumber, accountid, auth_id__c, case_number_text__c 

• Descriptions and summaries of the interaction: subject, description, 

short_description__c, investigation_subject__c, comment_body 

• Categorical variables: case_channel__c, producttags__c, product__c, category__c, 

segment__c, sub_category__c, product_pick__c 

• Date variables: createddate, date_time_opened_2__c, closeddate 

1 Order Granting Complaint Counsel’s Motion to Compel Production of Documents, In the Matter of Intuit Inc., 

Docket No. 9408, December 30, 2022. 2 Complaint Counsel’s First Requests for Production of Documents to Intuit Inc., In the Matter of Intuit Inc., 

Docket No. 9408, September 12, 2022, pp. 2–6 (“Unless otherwise specified, the time period covered by each 

request below shall be from November 1, 2020, through the date of your complete compliance with these 

requests.”; “All data pertaining to customers and potential customers who interacted with a free TurboTax offer 

or product or service, as contained in your customer relationship management database (“CRM”), or any 

database(s) used to maintain customer and potential customer information, feedback, complaints and/or sales.”). 3 I use the createddate to infer which tax year the interaction was initiated in. For example, if an interaction was 

initiated between November 1, 2021, and October 31, 2022, I consider the interaction to be related to TY21. 

The same logic is applied to TY20 and TY22. 

B-2 
 

 

 

 

 

PUBLIC FEDERAL TRADE COMMISSION | OFFICE OF THE SECRETARY | FILED 09/26/2023 OSCAR NO. 608656 -PAGE Page 86 of 101 * PUBLIC * 

[4] auth_id__c and createddate, where available, were used to match observations in the CRM 

Data 1 to corresponding observations in the Customer-Level Data for TY20–21.4

 Of the 813,292 

unique auth_id__c values associated with 1,043,743 interactions that occurred between 

November 1, 2020 and October 31, 2022, 762,528 (94 percent) appear in the Customer-Level 

Data for TY20–21 in the corresponding year. The remaining 75,925 interactions do not have 

accompanying auth_id__c information and therefore cannot be linked to the Customer-Level 

Data. 

3. Examples of Data (20 Entries) 

[1] The tables below show data for 20 entries from CRM Data 1 excluding personally 

identifiable information (name, email address, mailing address, and phone number). 

As discussed in the Deal January 2023 Report, the Customer-Level Data made available to me include returns 

initiated through June 10, 2022. See Expert Report of Bruce F. Deal, In the Matter of Intuit Inc., Docket No. 

9408, January 13, 2023 (“Deal January 2023 Report”), Appendix D, p. D-27. 

B-3 

4 
 

 

 

 

 

 

 

PUBLIC FEDERAL TRADE COMMISSION | OFFICE OF THE SECRETARY | FILED 09/26/2023 OSCAR NO. 608656 -PAGE Page 87 of 101 * PUBLIC * 

B. CRM Data 2 

1. Data files: INTUIT-FTC-PART3-000618579 – Deal 

2. Data Description 

[1] Data contained in INTUIT-FTC-PART3-000618579 include information on interactions 

between Intuit’s customer service representatives and customers or potential customers who 

interacted with a free TurboTax offer, product, or service.

5 The data file I used, INTUIT-FTCPART3-000618579 – Deal, which I refer to as CRM Data 2, contain all information available in 

INTUIT-FTC-PART3-000618579, supplemented with additional auth_id__c values where 

missing, as well as a binary variable, complaint_duplicate, that flags customer interactions that 

are identical or nearly identical to complaints previously identified by Complaint Counsel that I 

already analyzed in the Deal January 2023 Report.6 

[2] Each row in the CRM Data 2 represents a customer interaction, uniquely identified by the 

combination of name1, contact_driver_1__c, type_of_contact__c, and 

bu_customer_verbatim__c. In total, the dataset contains 494 observations. 

[3] Each column in the CRM Data 2 represents a variable that describes information associated 

with a particular interaction. The dataset contains information on the following: 

• Personally identifiable information: name1, email, phone 

• Other identifiers: auth_id__c,7 related_primary_account__c, id 

5 INTUIT-FTC-PART3-000618579. 6 Deal January 2023 Report, ¶ 160. 7 For interactions with missing auth_id__c, I instructed my team to use information in email, phone, and name1 

to populate the missing data using information manually looked up in Intuit’s CRM. Information on auth_id__c 

was filled for 124 of the 168 interactions with missing auth_id__c. 

B-4 
 

 

 

 

 

 

 

 

PUBLIC FEDERAL TRADE COMMISSION | OFFICE OF THE SECRETARY | FILED 09/26/2023 OSCAR NO. 608656 -PAGE Page 88 of 101 * PUBLIC * 

• Descriptions and summary of the interaction: what_caused_the_escalation_to_, 

what_did_the_customer_need_hel, bu_customer_verbatim__c 

• Categorical variables: contact_driver_1__c, contact_driver_2__c, product__c, 

type_of_contact__c 

• Indicator for interactions duplicate with complaints: complaint_duplicate8 

• Variables that are not populated: date_oop_received__c, 

government_agency_root_cause__, government_agency_root_cause_o, 

escalation_driver_l3_tsk_proc_it, bu_specific_incident_detail__c 

[4] The identifying variable, auth_id__c, where available, was used to match observations in 

CRM Data 2 to observations in the TY20–21 Customer-Level Data.9 Since there is no 

information on when an interaction took place, I matched observations in the CRM Data 2 to the 

TY20–21 Customer-Level Data by prioritizing matching to the TY21 Customer-Level Data. In 

the case of multiple auth_id__c values being associated with a single interaction, I prioritized the 

auth_id__c with a completed return. Of the 428 unique auth_id__c values associated with 450 

interactions in the CRM Data 2, 394 (92 percent) appear in the Customer-Level Data for either 

TY20 or TY21. The remaining 44 interactions do not have accompanying auth_id__c 

information, even after the additional effort to retrieve the missing information, and therefore 

cannot be linked to the Customer-Level Data. 

3. Examples of Data (20 Entries) 

[1] The tables below show data for 20 entries from CRM Data 2 excluding personally 

identifiable information (name, email address, and phone number). 

8 This is a binary flag that equals one for customer interactions that are identical or nearly identical to complaints 

previously identified by Complaint Counsel that I already analyzed in the Deal January 2023 Report, ¶ 160. To 

establish whether a customer interaction is duplicative of one of those complaints, I instructed three independent 

reviewers to assess whether the text detailing the content of the interaction and the customer’s name are 

identical or substantially identical to the text of the complaint and the corresponding complainant’s name. 

Specifically, the reviewers based their comparison on bu_customer_verbatim__c and name1 of the CRM Data 2 

and Complaint Comments, and First Name and Last Name of the data on complaint and the corresponding 

complainants. See Complaint Counsel’s Supplemental Responses to Intuit’s First and Second Set of 

Interrogatories, In the Matter of Intuit Inc., Docket No. 9408, December 22, 2022 and attachments, Attachment 

A. 9 As discussed in the Deal January 2023 Report, the Customer-Level Data made available to me include returns 

initiated through June 10, 2022. See Deal January 2023 Report, Appendix D, p. D-27. 

B-5 
 

PUBLIC FEDERAL TRADE COMMISSION | OFFICE OF THE SECRETARY | FILED 09/26/2023 OSCAR NO. 608656 -PAGE Page 89 of 101 * PUBLIC * 

C. Identifying the Unique Number of Customers in the CRM Data 

[1] The CRM Data include 1,055,079 interactions overall.10 A customer or potential customer 

may appear in one or both of the datasets (CRM Data 1 and CRM Data 2) and may be associated 

10 The CRM Data 1 contain 1,054,585 interactions while the CRM Data 2 contain 494. 

B-6 
 

 

 

 

 

 

 

 

 

 

PUBLIC FEDERAL TRADE COMMISSION | OFFICE OF THE SECRETARY | FILED 09/26/2023 OSCAR NO. 608656 -PAGE Page 90 of 101 * PUBLIC * 

with more than one interaction. In total, there are 822,399 unique customers, as identified by 

unique values of auth_id__c, associated with 909,018 interactions. The remaining 146,061 

interactions are associated with customers without sufficient identifying information and cannot 

be linked to the Customer-Level Data. At least 107,580 customers, as identified by unique values 

of auth_id__c, were associated with more than one interaction, and at least 59 customers appear 

in both CRM Data 1 and CRM Data 2. For example: 

• A customer reached out to Intuit’s customer service to discuss a letter she received from 

the IRS regarding earned income tax credit calculation. Her interactions with Intuit’s 

customer service representatives regarding this issue were recorded in both CRM Data 1 

and CRM Data 2.11 

• Another customer had at least 19 different interactions with customer support as captured 

in the CRM Data 1 between February 3, 2021 and October 12, 2021. She requested 

assistance with starting over her TY20 tax return, updating how she would receive her tax 

refund, checking the status of her stimulus payment, and learning about the TY21 filing 

window.12 

• A non-TurboTax user called twice to request a refund for $65 erroneously charged to her 

credit card. The customer “stated that she has her taxes done at another company and 

does not have TurboTax,” which the representative confirmed as the “[the system] do[es] 

not show her having TT.”13 

II. METHODOLOGY TO IDENTIFY POTENTIALLY RELEVANT AND 

POTENTIALLY IRRELEVANT INTERACTIONS 

[1] Interactions contained in the CRM Data cover a range of issues that may or may not be 

relevant to Complaint Counsel’s alleged consumer deception.14 To assess the potential relevance 

of individual interactions contained in the data, I analyzed the following text fields: 

description,

15 comment_body, and subject for interactions recorded in the CRM Data 1; 

11 CRM Data 1, INTUIT-FTC-PART3-000618568–78, auth_id__c = “100017703.”; CRM Data 2, INTUIT-FTCPART3-000618579 - Deal, auth_id__c = “100017703.” 12 CRM Data 1, INTUIT-FTC-PART3-000618568–78, auth_id__c = “13563577969169579.” 13 CRM Data 1, INTUIT-FTC-PART3-000618568–78, casenumber = “479080625,” comment_body = “does not 

have TT and got it on cc Ms. Rostran stated that she has her taxes done at another company and does not have 

Turbo Tax. We do not show her having TT and yet it is on her Credit Card bill. Advised to check with other 

company and the credit card company to remove the charge.. In order to close, had to use a product. [...]”; 

casenumber = “479085893,” comment_body = “[...] cx called in to get a refund for a charge on her bank 

account. ;Verbatim: I don't have an account with you guys. That's why I was wondering what which helped on 

my bank account. | Yeah, I don't have an account with you guys. That's why I'm calling because I want my 

money refunded since I didn't use you guys and it comes from you guys [...].” 14 Videotaped Deposition of Megan Baburek, In the Matter of Intuit Inc., Docket No. 9408, February 23, 2023 

(“Baburek Deposition”), 50:20–51:2 (“Q. And you mentioned customer complaints earlier as one type of data in 

the CRM. You recognize that there are other types of data in the CRM; right? A. Yes. Q. A CRM might log, for 

example, technical support calls from a customer; right? A. Yes. Q. It might log sales data or -- it might log 

sales to a customer; right? A. Yes.”). 15 In Complaint Counsel’s exhibits prepared by Ms. Baburek and produced on February 15, 2023, 

short_description__c was also analyzed. I note that the content of short_description__c, for all but two of 

approximately 1 million interactions in the CRM 1 Data, is identical to the first 255 characters of description. 

B-7 
FEDERAL TRADE COMMISSION | OFFICE OF THE SECRETARY | FILED 09/26/2023 OSCAR NO. 608656 -PAGE Page 91 of 101 * PUBLIC * 
 

 

 

 

 

 

 

 

 

 

 

 

 

PUBLIC FEDERAL TRADE COMMISSION | OFFICE OF THE SECRETARY | FILED 09/26/2023 OSCAR NO. 608656 -PAGE Page 92 of 101 * PUBLIC * 

[7] I use the following keywords to identify interactions that potentially reference products not 

at issue, such as TurboTax Desktop products, QuickBooks, and Mint: mint, quickbook, quick 

book, ttd. 

B. Interactions Potentially Relevant to Complaint Counsel’s Allegations 

[1] To identify interactions potentially relevant to Complaint Counsel’s allegations, I search for 

interactions that contain implicit language that may be suggestive of an expectation that filing 

would be free and/or mention “free” in conjunction with references to Intuit’s marketing or 

advertising. The keywords I consider can be grouped into three categories, as described below. 

[2] For every keyword indicator (as discussed in Sections II.B.1 through II.B.3 below), I 

consider the indicator to be true if its rules apply to any of the three text fields in the CRM 

Data 1 or any of the three text fields in the CRM Data 2 identified above. The keyword search is 

not sensitive to the letter case, and I process punctuation and special characters before the 

search.

18 

1. Interactions That Mention “Free” 

[1] I look for the word “free”—and certain misspellings—in isolation to exclude interactions 

where “free” occurs as part of a larger word like “freelance” or “tax-free.” I consider spellings of 

“free” that have only a single “e” (i.e., “fre”) and as many as four “e’s” (i.e., “freeee”).

19 Unlike 

Complaint Counsel’s summary exhibits of the CRM Data that count the number of instances the 

keywords are found, I count the number of interactions that contain the keywords.20 I identify 

34,706 customer interactions that mention “free” in the CRM Data. 

[2] It is worth noting that customer interactions may mention “free” when inquiries are made in 

the ordinary course of business about certain products.21 Hence, I look for interactions that 

mention the word “free,” along with the misspellings specified above, but only in the context of a 

product name. The names I considered are “Free Edition,” “IRS Free File,” and “TTO Free.” I 

account for variations in capitalization and misspellings of “free” and exclude any occurrences of 

“free” that occur independently of a product name. Among the 34,706 interactions that mention 

“free” at least once, there are 7,685 customer interactions where all mentions of “free” are 

18 Specifically, (i) hyphens and apostrophes are removed; (ii) all non-letter, non-number, non-space characters are 

replaced with a single space; and (iii) all spaces are singularized. 19 There are no instances of the word “free” with five or more e’s in the CRM Data. 20 The two produced spreadsheets prepared by Ms. Baburek count the number of instances the keywords are found 

in several fields. If one keyword was found twice in an interaction (either in the same field or in two of the 

fields used for the search), Ms. Baburek counted this keyword twice. Baburek Deposition, 132:18–24 (“Q. So, 

in effect, by searching against both the description and the short description field, your analysis effectively 

double counts any search germs that appear in the first 255 characters of the description field; is that right? MR. 

[Objection] THE WITNESS: Yes.”); Baburek Deposition, 99:9–14 (“Q. In fact, because that customer used the 

word “free” twice or the record within the CRM data used the word twice, your analysis would count each 

instance of the term “free” as a separate occurrence, right? A. Yes.”). 21 Baburek Deposition, 98:24–99:8 (“Q. And you didn’t do anything to filter out results, where the only reference 

to the term ‘free’ was the name of the product itself; is that right? A. Correct. Q. What about if a customer 

called Intuit to say, ‘I’m so happy that TurboTax Free Edition is free for me’? Would that record have been 

included in your keyword analysis? A. Yes.”). 

B-9 
 

 

 

 

 

 

 

 

 

 

 

PUBLIC FEDERAL TRADE COMMISSION | OFFICE OF THE SECRETARY | FILED 09/26/2023 OSCAR NO. 608656 -PAGE Page 93 of 101 * PUBLIC * 

exclusively in the context of product names. Examples of these interactions include (emphasis 

added): 

• A customer had “a question about the free edition.”22 

• Another customer had “trouble with net wages on IRS free file”23 

• A different customer who used Free Edition was tracking down her refund: “called with 

no case pop. used TTO free. looking for her refund, suggested wheres my refund @ IRS. 

its pending.”24 

However, customer interactions may contain references to these products using alternative 

language such as, “the free version” or “the free product.” These instances would not be 

identified in the product name search described above. 

[3] Even when considering customer interactions that mention “free” outside the context of 

product names, customer interactions may mention “free” in a manner that is unrelated to the atissue conduct, and are not necessarily relevant to Complaint Counsel’s allegations. For example 

(emphasis added): 

• A customer who is a travel nurse called about “tax free stipends from the government.”25 

• In another instance, a customer needed “a free download for the desktop.”26 

• A different customer “wanted to check if military filed free.”27 

• Another interaction ended with the following: “Please feel free to contact us again with 

any questions. Thank you for using TurboTax.”28 

[4] It is also worth noting that during the time period captured in the CRM Data, there were 

several litigations against Intuit unrelated to the current matter, including a class action,29 

22 CRM Data 1, INTUIT-FTC-PART3-000618568–78, casenumber = “472571925,” description = “i have a 

question about the free edition.” 23 CRM Data 1, INTUIT-FTC-PART3-000618568–78, casenumber = “477118690,” comment_body = “cx is 

having trouble with net wages on IRS free file walked cx through trouble shooting for a solution.” 24 CRM Data 1, INTUIT-FTC-PART3-000618568–78, casenumber = “472579429,” comment_body = “called 

with no case pop. used TTO free. looking for her refund, suggested wheres my refund @ IRS. its pending.” 25 CRM Data 1, INTUIT-FTC-PART3-000618568–78, casenumber = “1496898462,” comment_body = 

“[...]Verbatim: So I work as a travel nurse and with that I get like tax free stipends from the government like 

following the GSA. But I wasn't sure when I'm like filing like do the receipts that I've kept for everything, does 

that go under my expenses for being a travel nurse or how do I go ahead and make sure that like because I'm I'm 

not sure [...].” 26 CRM Data 1, INTUIT-FTC-PART3-000618568–78, casenumber = “1491753031,” comment_body = “CX 

needs a free download for the desktop.I was given permission but was having system issues.CX will call back to 

receive free desktop downloadWas on call with cx for 2 hours Reached out to arise chat as well as tier 2 Also 

did a screen share with arise chat to see why I was not able to push download for cx. There are severa cases 

open because when I think I was finished and closed the case I will be given the order to do something else 

which make me reopen the case.” 27 CRM Data 1, INTUIT-FTC-PART3-000618568–78, casenumber = “1499120714,” comment_body = “cx 

wanted to check if military filed free.” 28 CRM Data 1, INTUIT-FTC-PART3-000618568–78, casenumber = “470343424,” comment_body = “[...] 

Please feel free to contact us again with any questions. Thank you for using TurboTax.” 29 See, e.g., Frankel, Alison, “Judge Breyer Rejects $40 Million Intuit Class Settlement Amid Arbitration 

Onslaught,” Reuters, December 22, 2020, https://www.reuters.com/article/idUSKBN28W2M5, accessed March 

9, 2023. 

B-10 
 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

PUBLIC FEDERAL TRADE COMMISSION | OFFICE OF THE SECRETARY | FILED 09/26/2023 OSCAR NO. 608656 -PAGE Page 94 of 101 * PUBLIC * 

California City Attorney lawsuits,30 and a mass arbitration with over 100,000 claimants.31 

Publicity surrounding these litigations included numerous reports and articles in the public 

press,

32 and other communications such as a tweet by Senator Warren.33 Public awareness of 

these litigations is reflected in the CRM Data, where some customer interactions mention “free” 

specifically in reference to some of these litigations. For example (emphasis added): 

• “Turbo Tax expressedly [sic] guarantees persons earning an AGI (Adjusted Gross 

Income) of $34,000 or less the option to file his or her state and federal 2020 taxes for 

free. [...] I have also attached a ProPublica new[s] article [...].”34 

• “I believe that I’m entitled to receive a partial refund of money paid to Turbo Tax as a 

result of a $141 million settlement against Turbo Tax for defrauding consumers. I used 

Turbo Tax for many years and I did not know that I qualified for a free e file because of 

my Income level. How do I go about submitting a claim to receive this compensation?”35 

• “[...] I was told from online site that filing was free [...] I would like my $55 returned 

plus my $271 that was paid, I stated turbotax just had a settlement on wrongfully charges 

in New York and other states on this same thing.”36 

30 See, e.g., State of California Office of the Attorney General, Press Release, “Attorney General Bonta 

Announces Nationwide Settlement Against Intuit for Deceptive Advertising of “Free” TurboTax Products,” 

May 4, 2022. 31 See, e.g., Frankel, Alison, “Intuit Defends $40 Million Class Settlement, Attacks Mass Arbitration Firm,” 

Reuters, December 9, 2020, https://www.reuters.com/article/legal-us-otc-intuit/intuit-defends-40-million-classsettlement-attacks-mass-arbitration-firm-idUSKBN28J34A, accessed March 9, 2023. 32 See, e.g., Root, Tik, “Why Are Millions Paying Online Tax Preparation Fees When They Don’t Need To?,” 

ProPublica, June 18, 2018, https://www.propublica.org/article/free-file-online-tax-preparation-fees-intuitturbotax-h-r-block, accessed March 9, 2023; Angeles, CBS Los, “California Customers of TurboTax Eligible 

for $11.4 Million Settlement in Deceptive Advertising Case,” May 4, 2022, 

https://www.cbsnews.com/losangeles/news/california-customers-of-turbotax-eligible-for-11-4-millionsettlement-in-deceptive-advertising-case/; Frankel, Alison, “Intuit Defends $40 Million Class Settlement, 

Attacks Mass Arbitration Firm,” Reuters, December 9, 2020, https://www.reuters.com/article/legal-us-otcintuit/intuit-defends-40-million-class-settlement-attacks-mass-arbitration-firm-idUSKBN28J34A, accessed 

March 9, 2023. 33 @SenWarren, “Intuit Has Raked in Billions by Tricking Americans into Paying for Tax Filing Serviecs That 

Should Be Free,” May 4, 2022, https://twitter.com/SenWarren/status/1522026666603819008. 34 CRM Data 2, INTUIT-FTC-PART3-000618579 - Deal, id = “313,” bu_customer_verbatim__c = “Dear Better 

Business Bureau: Turbo Tax expressedly guarantees persons earning an AGI (Adjusted Gross Income) of 

$34,000 or less the option to file his or her state and federal 2020 taxes for free. Yet Turbo Tax fraudulently 

charged me 39.99 to file my federal WA tax for 2020 which was considerably lower than $34,000 AGI for the 

2020 filing year. I have contacted Turbo Tax's customer support for weeks only to have 2 hour wait times and 

be told that I would be transferred and then silence as the lines drops. I have also attached a ProPublica new 

article on this Turbo Tax software being coded to misguide low-income consumers to purchase software that 

either is not free or a financial burden to consumers [...].” 35 CRM Data 2, INTUIT-FTC-PART3-000618579 - Deal, id = “472,” bu_customer_verbatim__c = “I believe that 

I'm entitled to receive a partial refund of money paid to Turbo Tax as a result of a $141 million settlement 

against Turbo Tax for defrauding consumers. I used Turbo Tax for many years and I did not know that I 

qualified for a free e file because of my Income level. How do I go about submitting a claim to receive this 

compensation? Do you need to see supporting documentation to show that I used Turbo Tax? Thank you for 

your help. I really appreclati~ It.” 36 CRM Data 2, INTUIT-FTC-PART3-000618579 - Deal, id = “476,” bu_customer_verbatim__c = “I filed my 

taxes with Turbo tax on March 19, 2022, I was told from online site that filing was free, before filing, I received 

B-11 
 

 

 

 

 

 

 

 

 

 

PUBLIC FEDERAL TRADE COMMISSION | OFFICE OF THE SECRETARY | FILED 09/26/2023 OSCAR NO. 608656 -PAGE Page 95 of 101 * PUBLIC * 

2. Interactions That Contain Implicit Language That May Be Suggestive of 

an Expectation That Filing Would Be Free 

[1] As a second scenario, I look for occurrences of certain phrases that may be implicitly 

suggestive of the customer having an expectation of filing for free. Note that even if the language 

identified in these occurrences were implicitly suggestive of the customer having an expectation 

of filing for free, it would not necessarily mean that this expectation was formed as a result of the 

customer interaction with Intuit’s advertising campaign for Free Edition. 

[2] To identify the customer interactions in which customers might have expressed an 

expectation of filing for free, I search for sentences that include any of the following verbs 

preceding the keyword “free” as described in Section II.B.1.

37 These searches flag any word that 

starts with the string of letters searched. For example, searches for “guarantee” also retrieve 

sentences that included the string “guarantees,” “guaranteeing,” or “guaranteed.” 

• “expect” 

• “guarantee” 

• “should”38 

• “suppose”39 

• “think”40 

[2] To account for variations in grammar, syntax, and phraseology, I allow for the presence of up 

to five words between the verb and the “free” keyword. This methodology may flag interactions 

that are not potentially relevant. For example (emphasis added): 

help from turbo tax help, I was informed that our state tax filing could be setup at later time, I stated to online 

live that's nice, so I decided to file state tax on April 30, 2022. I contacted Indiana Dor and was told, we have a 

penalty for state taxes owed in which we needed to pay $550 but since the deadline passed the fee was now 

$605 plus. I stated that Turbo tax completed our taxes and the representative stated we could pay at a later time. 

An Indiana dor representative stated on April 22, 2022 a 10% penalty was added plus interest daily in which an 

extra $55.00 was added [...] I would like my $55 returned plus my $271 that was paid, I stated turbotax just had 

a settlement on wrongfully charges in New York and other states on this same thing. [...].” 37 Although Ms. Baburek’s keyword analysis also searches for terms potentially expressing an expectation (e.g., 

“should be free”) it overstates the number of interactions potentially related to Complaint Counsel’s allegations. 

For instance, I understand that her search for the phrase “should be free” includes instances where this phrase 

occurs solely in the subject field. See, e.g., Baburek Deposition, 106:14–107:10 (“Q. Let’s look at Row 5, 

which is Case Number 468730285. Looking back at Column V, which is the comment body field, do you see 

that this record captures the following customer interaction, quote, ‘CX has already filed her taxes, but got 

another W-2 form. Explained to her the process of waiting for the IRS to accept or reject her return and emailed 

the process for amending the tax return.’ Did I read that correctly? A. Yes. Q. In looking at Column C again, the 

subject filed, you agree that this record has the same value in that filed that reads, ‘Price 

adjustment/downgrade/should be free’; right? A. Yes. Q. So looking at this record as a whole, do you agree that 

the only place where the term ‘should be free’ appears is in Column C, the subject field? And if you need to 

take a minute to scroll across and look at all the values please do. A. Yes.”). 38 This flag excludes customer service interactions where the subject includes the text “Price Adjustment / 

Downgrade / Should be free,” and there is no additional mention of “free” in either of the remaining two text 

variables (description or comment_body). 39 In addition, I also flag customer interactions that have exact mentions of “supposing” before the keyword 

“free.” 40 In addition, I also flag customer interactions that have exact mentions of “thought” before the keyword “free.” 

B-12 
 

 

 

 

 

 

 

 

 

 

PUBLIC FEDERAL TRADE COMMISSION | OFFICE OF THE SECRETARY | FILED 09/26/2023 OSCAR NO. 608656 -PAGE Page 96 of 101 * PUBLIC * 

• A customer “stated that he received another W-2 that he was not expecting, but the free 

edition of Turbo Tax will not allow him to add another W-2. Customer’s return has been 

accepted by the IRS, but it has not been processed. Agent informed customer that he 

would have to wait until the amend option was available.”41 

• Another customer inquired if “there’s a deadline to file free on turbotax,” and the service 

representative advised that “as long as cx return is within the free return guideline her tax 

return filing should be free.”42 

• A different customer inquired about the cost of state returns when using a TurboTax 

Desktop product: “cx thought deluxe included one free state download it is free to 

prepare the tax document but not free to efile.”43 

3. Interactions That Reference Advertising 

[1] As a third scenario, I look for occurrences of certain phrases potentially related to Intuit’s 

marketing or advertising among those that mention “free.”44,45 To do so, I identify any customer 

interaction that contains words that start with “advert.” For example, this string of text captures 

words such as “advertising,” “advertisement,” and “advertised.” In addition, I flag customer 

interactions that have exact mentions of the following keywords: 

41 CRM Data 1, INTUIT-FTC-PART3-000618568–78, casenumber = “1487429999,” comment_body = 

“Importing a W-2 Customer stated that he received another W-2 that he was not expecting, but the free edition 

of Turbo Tax will not allow him to add another W-2. Customer's return has been accepted by the IRS, but it has 

not been processed. Agent informed customer that he would have to wait until the amend option was available. 

SL was initiated by agent [...].” 42 CRM Data 1, INTUIT-FTC-PART3-000618568–78, casenumber = “468298604,” comment_body = “Stimulus 

cx inquired in regards to irs error. advised cx if she didn't received an email from tt to update bank info she was 

not affected by the error and that the irs deadline to send out stimulus is january 31. advised if cx does not 

receive funds by then she can claim rebate recovery on 2020 tax return. cx asked if there's a deadline to file free 

on turbotax, i advised as long as cx return is within the free return guideline her tax return filing should be free.” 43 CRM Data 1, INTUIT-FTC-PART3-000618568–78, casenumber = “1488516793,” comment_body = “[...] 

Verbatim: Okay. I ordered a TurboTax software online from Amazon and I thought I had ordered the Deluxe 

edition, which I thought included one state and five federal. But when I went to do a state, they charged me $20. 

| Oh okay well last year I got a free state one and it didn't have that federal extra charge. So that's new this year 

then. [...] cx thought deluxe included one free state download... it is free to prepare the tax document but not 

free to efile.” 44 The Complaint alleges that Intuit’s advertising conveys the message that consumers can file their taxes for free 

and that given Intuit’s advertising reasonable consumers believe that TurboTax products are free for them. 

Complaint, United States of America before the Federal Trade Commission in the Matter of: Intuit Inc., A 

Corporation, Docket No. 9408, March 28, 2022 (“Complaint”), ¶ 5 (“Much of Intuit’s advertising for TurboTax 

conveys the message that consumers can file their taxes for free using TurboTax, even going so far as to air 

commercials in which almost every word spoken is the word ‘free.’”); Complaint, ¶ 35 (“Given this advertising, 

reasonable consumers may believe that TurboTax products and services Intuit advertises as free are free for 

them – that they can file their taxes for free using TurboTax.”). 45 Ms. Baburek’s keyword analysis records are not designed to answer the important question of whether the 

interaction is related to advertising. See, e.g., Baburek Deposition, 116:6–20 (“Q. And you didn’t make any 

attempt to filter out reports from consumers who did not mention TurboTax advertising generally; right? A. 

Correct. Q. So the records that were included in your keywork analyses could include customers who were not 

complaining about Intuit’s free TurboTax advertising; right? A. Yes. Q. And, in fact, as we’ve seen today, the 

output file which we’ve been reviewing, which is RX1374, includes records that do not, on their face, mention 

Intuit’s free TurboTax advertisements at all; right? A. Correct.”). 

B-13 
 

 

 

 

 

 

 

 

PUBLIC FEDERAL TRADE COMMISSION | OFFICE OF THE SECRETARY | FILED 09/26/2023 OSCAR NO. 608656 -PAGE Page 97 of 101 * PUBLIC * 

• “ad” or “ads” 

• “marketing” 

• “promotion” or “promotions” 

• “tv,” “television,” “commercial,” or “commercials” 

[2] Similar to the search for “free,” customer interactions may mention advertising-related 

keywords described above in a manner that is unrelated to Intuit’s advertising of Free Edition 

specifically, or Intuit’s advertising in general.46 For example (emphasis added): 

• A customer mentioned “want[ing] to upgrade to TT Live”: “I never, I mean I don’t know 

if it was for free or not. I was just trying to file, but I was trying to figure out I would 

prefer [...]. I’ve been se[e]ing commercial to say turbo li[v]e. Somebody can file for 

you. I mean like you can file for me, so that’s what I was looking to do the upgrade for 

that.”47 

• Another customer expressed concern with the software having “spelling errors” and 

stated that they were “bothered with all the ads [...] all the errors with TT.” They also 

stated, “since some people get their tax forms late the free service should be offered to 

first time users instead of date restricted.”48 

• Another customer inquired about the deadline for the “Live” promotion: “[w]ants to add 

expert help and wants to know the deadline for the promotion. of free. adv of deadline of 

promotion which is found online 2/15. adv how to add. was able to add. deadline is not 

2/15. must file by 3/31 for $0 live expert promotion”49 

III.MANUAL REVIEW OF RANDOM SAMPLES 

[1] To validate my methodology, I review customer interactions from four stratified random 

samples from the CRM Data. I consider two random samples of 300 interactions each from CRM 

46 Baburek Deposition, 81:5–9 (“Q. And in order to identify whether a complaint is relevant to complaint 

counsel’s allegations in this case, you’d actually need to review the complaint to see what the customer was 

saying; right? A. Correct.”). 47 CRM Data 1, INTUIT-FTC-PART3-000618568–78, casenumber = “1496835363,” comment_body = “cx wants 

to upgrade to TT live. [...] Verbatim: Yes. Oh I didn't know, I I never, I mean I don't know if it was for free or 

not. I was just trying to file, but I was trying to figure out I would prefer to file with a lot. You know, I've been 

sending commercial to say turbo life. Somebody can file for you. I mean like you can file for me, so that's what 

I was looking to do the upgrade for that, but I didn't want to have to I I want like the self thing has been 

keeping track of all my mileage and all that kind of stuff. So I didn't I didn't know how to get it to turbo alive. 

Am I making sense?[...].” 48 CRM Data 1, INTUIT-FTC-PART3-000618568–78, casenumber = “1497099518,” comment_body = 

“1497099518 software had spelling errors and made cx feel uncomfortable with submitting their return with TT. 

Cx bothered with all the ads. Cx also bothered with all the errors with TT. Cx was worried to contact live 

support concerned with being charged with for support from someone who might not know what they are doing. 

cx stated since some people get their tax forms late the free service should be offered to first time users instead 

of date restricted.” 49 CRM Data 1, INTUIT-FTC-PART3-000618568–78, casenumber = “1486595860,” comment_body = “[...] Got 

the alert but CCP still will not allow mic so call dropped.. Wants to add expert help and wants to know the 

deadline for the promotion. of free. adv of deadline of promotion which is found online 2/15. adv how to add. 

was able to add. Deadline is not 2/15. Must file by 3/31 for $0 live expert promotion.” 

B-14 
 

 

 

 

 

 

 

PUBLIC FEDERAL TRADE COMMISSION | OFFICE OF THE SECRETARY | FILED 09/26/2023 OSCAR NO. 608656 -PAGE Page 98 of 101 * PUBLIC * 

Data 1: one sample limited to interactions that do not mention “free” and the other drawn from 

the remaining interactions that do mention “free.” I take a similar approach using two random 

samples of 30 observations each from CRM Data 2. 

[2] After selecting the random samples, I instructed two reviewers to independently read through 

the following text fields: description, comment_body, and subject for interactions recorded in the 

CRM Data 1; bu_customer_verbatim__c, what_caused_the_escalation_to_, and 

what_did_the_customer_need_hel for those recorded in CRM Data 2. 

[3] To ascertain the relevance of the interactions in these samples, I instructed the two reviewers 

to apply the following steps: 

a. Examine the interaction for evidence indicating that the customer or potential customer 

had an expectation of being able to file for free (and was not related to TurboTax Desktop 

or IRS Free File offered by TurboTax). If there is no such evidence, mark the interaction 

as not relevant (“No”); otherwise, consider the next question before marking the 

interaction. 

b. Examine the interaction for evidence indicating that the customer or potential customer’s 

expectation was mentioned in connection to Intuit’s marketing or advertising. Mark the 

response as “Yes,” “Maybe,” or “No.” 

[4] Results from the two random samples that do not mention “free” (a total of 330 interactions): 

Both reviewers independently flagged all interactions as not relevant (that is, they indicated “No” 

in response to the question of whether there was evidence indicating that the customer or 

potential customer had an expectation of being able to file for free). 

[5] Results from the two random samples that mention “free” (a total of 330 interactions): The 

two reviewers flagged 11 interactions as relevant, one as possibly relevant, and the rest as not 

relevant (“Yes,” “Maybe,” and “No,” respectively). 

[6] Comparison to systematic analysis outlined above in Section II: Using keywords alone, my 

analysis identified 15 interactions in these samples that mention “free” in conjunction with 

references to Intuit’s marketing or advertising, compared to 12 identified in the manual review as 

relevant or possibly relevant. The systematic analysis and the manual review align in 9 of these 

interactions. In 6 instances the systematic approach is overinclusive and identifies interactions 

that do not provide evidence that the customer had an expectation of being able to file for free in 

connection with Intuit’s marketing or advertising. Specifically, two interactions flagged by my 

keyword search as mentioning words related marketing or advertising were identified because 

they include a typo (“ad” instead of “add”)50 or mention a keyword in an unrelated context;51 

two customers provided extra feedback that also mentioned advertising;52 one customer was 

50 CRM Data 1, INTUIT-FTC-PART3-000618568–78, casenumber = “1492728575,” subject = “I paid for turbo 

tax that allows I believe 4 returns? I don’t know how to ad people to this program... need help - this case is 

created by TDA.” 51 CRM Data 2, INTUIT-FTC-PART3-000618579 - Deal, id = “214,” bu_customer_verbatim__c = “[...] This 

followed my work years ago to launch internet services in Europe, to consult for the European Commission, 

Citibank and many others, and to co-author a manual on internet marketing. [...].” 52 CRM Data 2, INTUIT-FTC-PART3-000618579 - Deal, id = “285,” what_caused_the_escalation_to_ = 

“Customer had feedback on ease of use and capabilities of product.”; CRM Data 2, INTUIT-FTC-PART3-

000618579 - Deal, id = “379,” what_caused_the_escalation_to_ = “Customer wanted to provide extra feedback 

beyond what he put in the survey.” 

B-15 
 

 

 

 

 

 

 

 

 

 

PUBLIC FEDERAL TRADE COMMISSION | OFFICE OF THE SECRETARY | FILED 09/26/2023 OSCAR NO. 608656 -PAGE Page 99 of 101 * PUBLIC * 

seeking help with account recovery;53 and another one was an inquiry related to a desktop 

product.54 

[7] Among the three interactions marked “Yes” or “Maybe” identified in my manual review but 

not in my systematic analysis, two are related to the TurboTax Live products,55 while the 

remaining one was an inquiry about the customer’s federal refund following up on an earlier 

complaint about fees.56 

[8] The results of my manual review of the random samples are documented in the file CRM 

Review.xlsx. 

[9] As described in Section IV.A. of my report, the rate at which interactions from the random 

samples indicate a possibility that customers or potential customers were seeking to file for free 

because of Intuit’s marketing or advertising does not fundamentally differ from the rate 

identified through my systematic analysis. If anything, results from my manual review 

demonstrate that my systematic analysis is on net overinclusive of relevant interactions. 

53 CRM Data 1, INTUIT-FTC-PART3-000618568–78, casenumber = “1492795586,” comment_body = “[...] Cx 

called in stating that stating that its asking for her 1040 and she doesn’t have it [...].” 54 CRM Data 1, INTUIT-FTC-PART3-000618568–78, casenumber = “1493701182,” comment_body = “[...] 

when I was doing it on the tax itself before I said file it says federal free and the state $20. When I file it, it 

charged me 25 for each state. [...] TurboTax was bought from Costco [...].” 55 CRM Data 2, INTUIT-FTC-PART3-000618579 - Deal, id = “29,” what_did_the_customer_need_hel = “He 

wanted to know if he could get a refund since the TT fee was higher than they wanted to pay. But did 

acknowledge that he knew how to go back so he wasn’t charged the amount. And did acknowledge that he did 

say yes to paying that fee. [...].”; CRM Data 1, INTUIT-FTC-PART3-000618568–78, casenumber = 

“1493814807,” comment_body = “[...] cx called in because she was charged for live and she wanted to 

downgrade. [...] my husband had to go through the same rigamarole and he was able to get someone to waive 

his fee [...].” 56 CRM Data 2, INTUIT-FTC-PART3-000618579 - Deal, id = “101,” bu_customer_verbatim__c = “I wrote to 

you earlier to complain about your fees, as repeated below, now I am wondering where my refund is? I was 

told it would be deposited around March 24. [...].” 

B-16 
 

 

 

 

 

 

 

 

 

FEDERAL TRADE COMMISSION | OFFICE OF THE SECRETARY | FILED 09/26/2023 OSCAR NO. 608656 -PAGE Page 100 of 101 * PUBLIC * 

UNITED STATES OF AMERICA 

BEFORE THE FEDERAL TRADE COMMISSION 

COMMISSIONERS: Lina M. Khan, Chair 

Rebecca Kelly Slaughter 

Alvaro M. Bedoya 

In the Matter of: Docket No. 9408 

Intuit Inc., a corporation. 

[PROPOSED] ORDER 

Upon consideration of the appeal briefs submitted in this proceeding, the arguments of 

counsel for the parties at oral argument, and the record in this matter, pursuant to 16 C.F.R. 

§ 3.54, 

IT IS HEREBY ORDERED THAT the Initial Decision dated August 29, 2023, is 

VACATED; and 

IT IS FURTHER ORDERED THAT the Complaint is hereby DISMISSED. 

By the Commission. 

Date: ___________________ ____________________________ 

 April Tabor

 Secretary of the Commission 

PUBLIC
 

FEDERAL TRADE COMMISSION | OFFICE OF THE SECRETARY | FILED 09/26/2023 OSCAR NO. 608656 -PAGE Page 101 of 101 * PUBLIC * 

CERTIFICATE OF SERVICE 

On September 26, 2023, I caused the foregoing document to be filed electronically using 

the FTC’s E-Filing system, which will send notification of such filing to: 

April Tabor 

Office of the Secretary 

Federal Trade Commission 

600 Pennsylvania Avenue, NW 

Suite CC-5610 

Washington, DC 20580 

ElectronicFilings@ftc.gov 

The Honorable D. Michael Chappell 

600 Pennsylvania Ave., NW, Rm. H-110 

Washington, DC 20580 

Also on September 26, 2023, I caused the foregoing document to be served via email on: 

Roberto Anguizola 

Federal Trade Commission 

600 Pennsylvania Avenue NW 

Washington, DC 20580 

ranguizola@ftc.gov 

(202) 326-3284 

James Evans 

Federal Trade Commission 

600 Pennsylvania Avenue, NW 

Washington, DC 20580 

jevans1@ftc.gov 

(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 

Rebecca Plett 

Federal Trade Commission 

600 Pennsylvania Avenue NW 

Washington, DC 20580 

rplett@ftc.gov 

(202) 326-3664 

Sara Tonnesen 

Federal Trade Commission 

600 Pennsylvania Avenue NW 

Washington, DC 20580 

stonnesen@ftc.gov 

(202) 326-2879 

The Honorable D. Michael Chappell 

Administrative Law Judge 

600 Pennsylvania Ave. NW, Rm. H-110 

Washington, DC 20580 

/s/ Derek Woodman 

Derek Woodman 

Counsel for Intuit Inc. 

PUBLIC