PUBLIC FEDERAL TRADE COMMISSION | OFFICE OF THE SECRETARY | FILED 11/06/2023 OSCAR NO. 608887 -PAGE Page 1 of 31 * 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 REPLY 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 

November 6, 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 
 

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TABLE OF CONTENTS 

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

ARGUMENT.................................................................................................................................. 2 

I. CC Repeat The ALJ’s Mistakes.......................................................................................... 2 

A. CC Commit The Same Legal Errors As The ALJ .................................................. 2 

1. CC would impose a baseless heightened disclosure requirement for “Free” 

claims .......................................................................................................... 2 

2. CC improperly analyze the ads piecemeal and from their subjective 

viewpoint..................................................................................................... 3 

3. CC’s continued reliance on the deceptive-door-opener theory is misplaced 

..................................................................................................................... 5 

B. The Record, Properly Considered, Establishes That None Of The Challenged Ads 

Was Deceptive ........................................................................................................ 7 

1. No ad conveyed that “TurboTax is free” .................................................... 7 

2. CC are wrong that the record establishes that a significant minority of 

reasonable consumers was likely to be misled ......................................... 10 

a. CC fail to rebut evidence concerning reasonable consumers in the 

industry ......................................................................................... 10 

b. CC’s expansive reliance on Novemsky’s survey is fatal to their 

case................................................................................................ 13 

c. CC misconstrue the remaining extrinsic evidence ........................ 17 

II. The Proposed Order Is Unwarranted And Inappropriate .................................................. 20 

A. CC Do Not Show That Any Cease-And-Desist Order Is Warranted .................... 20 

B. CC Cannot Justify The ALJ’s Order..................................................................... 21 

III. The Proceeding Is Unconstitutional And Untimely .......................................................... 22 

A. CC’s Constitutional Arguments Fail ..................................................................... 22 

B. CC’s Timeliness Arguments Are Baseless ........................................................... 24 

CONCLUSION ............................................................................................................................. 24 

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TABLE OF AUTHORITIES 

Page(s) 

CASES 

Adams v. Woods, 6 U.S. 336 (1805) ..............................................................................................24 

American Dairy Queen Corp. v. W.B. Mason Co., 2022 WL 2760024 (D. Minn. 

July 14, 2022).....................................................................................................................15 

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

Bell v. Publix Super Markets, Inc., 982 F.3d 468 (7th Cir. 2020) ...................................................6 

Benco Dental Supply Co., 2019 WL 5419393 (F.T.C. Oct. 15, 2019) ..........................................20 

Clicks Billiards, Inc. v. Sixshooters, Inc., 251 F.3d 1252 (9th Cir. 2001) .....................................15 

Encyclopaedia Britannica, Inc., 87 F.T.C. 421 (1976)....................................................................5 

Environmental Conservation Organization v. City of Dallas, 529 F.3d 519 (5th Cir. 2008)........20 

FTC v. Bronson Partners, LLC, 564 F.Supp.2d 119 (D. Conn. 2008) ............................................8 

FTC v. DirecTV, 2018 WL 3911196 (N.D. Cal. Aug. 16, 2018)...............................................6, 11 

Grolier, Inc., 99 F.T.C. 379 (1982) .................................................................................................5 

Harris v. Las Vegas Sands L.L.C., 2013 WL 5291142 (C.D. Cal. Aug. 16, 2013).........................6 

Humphrey’s Executor v. United States, 295 U.S. 602 (1935) .......................................................23 

In re NJOY Inc., 120 F.Supp.3d 1050 (C.D. Cal. 2015)................................................................15 

Jarkesy v. SEC, 34 F.4th 446 (5th Cir. 2022) ................................................................................23 

Marksberry v. FCA US LLC, 606 F.Supp.3d 1075 (D. Kan. 2022).................................................7 

McGinity v. Procter & Gamble Co., 69 F.4th 1093 (9th Cir. 2023)..............................................14 

Moore v. Trader Joe’s Co., 4 F.4th 874 (9th Cir. 2021)..............................................................6, 7 

National Association of Manufactures v. SEC, 800 F.3d 518 (D.C. Cir. 2015) ............................22 

NIFLA v. Becerra, 138 S.Ct. 2361 (2018) .....................................................................................22 

Resort Car Rental Systems, Inc. v. FTC, 518 F.2d 962 (1975)........................................................5 

Rothensies v. Electric Storage Battery Co., 329 U.S. 296 (1946) .................................................24 

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S.C. Johnson & Son, Inc. v. Clorox Co., 241 F.3d 232 (2d Cir. 2001)............................................4 

Seila Law v. CFPB, 140 S.Ct. 2183 (2020) ...................................................................................23 

Telebrands Corp., 140 F.T.C. 278 (2005) .....................................................................................10 

THOIP v. Walt Disney Co., 690 F.Supp.2d 218 (S.D.N.Y. 2010).................................................14 

Thompson Medical Co., 104 F.T.C. 648 (1984) ..............................................................................7 

United States v. W. T. Grant Co., 345 U.S. 629 (1953).................................................................20 

Washington v. Hyatt Hotels Corp., 2020 WL 3058118 (N.D. Ill. June 9, 2020).............................6 

Water Quality Insurance Syndicate v. United States, 225 F. Supp. 3d 41 (D.D.C. 2016) ............19 

Williams v. Pennsylvania, 579 U.S. 1 (2016) ................................................................................22 

Withrow v. Larkin, 421 U.S. 35 (1975)..........................................................................................22 

REGULATIONS 

16 C.F.R. 

§3.43(a) ............................................................................................................................2, 3 

§3.51(b) ..............................................................................................................................23 

§3.52(a)(1) .........................................................................................................................14 

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)....................................................................4, 8 

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GLOSSARY OF ABBREVIATIONS 

Abbreviation Meaning 

ALJ Administrative Law Judge 

CC Complaint Counsel 

CCAB Complaint Counsel’s Answering Brief 

CCB Complaint Counsel’s Post-Trial Brief 

CCPC Complaint Counsel’s Proposed Conclusions of Law 

CCPF Complaint Counsel’s Proposed Findings of Fact 

CCRB Complaint Counsel’s Post-Trial Reply Brief 

CRM customer relationship management 

ID Initial Decision 

IDF Initial Decision Finding of Fact 

RAB Respondent’s Appeal Brief 

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 

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INTRODUCTION 

Seeking to satisfy their burden to prove that Intuit’s ads were deceptive, CC consistently 

mischaracterize or disregard Intuit’s arguments, the law, and the record. CC must take those 

impermissible steps because a simple truth dictates the result here: TurboTax Free Edition is 

advertised as a free product because it is a free product. Over ten million consumers use the 

product (widely recognized as best in the industry) every year to file their taxes for free. There is 

nothing deceptive about advertising a free product when it is free. 

CC can argue that the ads are deceptive only by repeatedly ignoring the ads’ disclosures. 

But reasonable consumers view the ads as they ran, and those ads expressly stated that a specific 

product (not all TurboTax) was free, that only some consumers could use it (often by stating 

“simple tax returns only”), and that consumers should see if they qualified at TurboTax.com. 

Thus, when a federal judge viewed the ads, he observed that they “don’t say it is free to 

everybody and nobody thinks it is free to everybody,” adding that the disclosure “is right there 

... it says ‘TurboTax free edition, for simple tax returns only.’” RPF¶15. The record shows that 

reasonable consumers viewing the ads had the same reaction. And if they hadn’t, Intuit’s 

business model—building long-term brand loyalty by offering a top-notch free product—would 

have compelled Intuit to fix the ads. The outcome here should be no different than when a 

neutral judge fairly considered this record. 

Instead, the steady march toward the Commission’s preordained conclusion has called 

into question the FTC’s adherence to the rule of law. CC’s arguments, adopted largely verbatim 

by the ALJ, contravene legal precedent and the record, demonstrated partly by CC’s consistent 

disregard of Intuit executives’ testimony. Yet the ALJ largely accepted those erroneous 

arguments, despite his open skepticism about them during trial. Likewise, the proposed ceaseand-desist order is both unnecessary and divorced from the evidence. The order also contradicts 

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the Commission’s attempts to account for the modern digital marketplace in its enforcement 

actions, and the order’s censoring of truthful free advertising will harm consumers. Those 

conclusions are especially clear considering the status quo is Intuit’s consent order with 51 

attorneys general. 

ARGUMENT 

I. CC REPEAT THE ALJ’S MISTAKES 

A. CC Commit The Same Legal Errors As The ALJ 

CC fail to justify any of the ALJ’s three legal errors that Intuit identified (RAB.33-40). 

1. CC would impose a baseless heightened disclosure requirement for 

“Free” claims 

To reach their conclusion that the challenged ads were deceptive, CC (like the ALJ) 

proceed as though an advertiser’s use of “free” triggers a heightened disclosure standard, under 

which the respondent must prove that an ad disclosed every detail of its offer. That standard 

lacks any legal basis. RAB.33-35. It is CC’s burden, 16 C.F.R. §3.43(a), to prove that the ads 

were likely to deceive reasonable consumers, RAB.12. There is no exception for “free” claims, 

certainly when the advertised product is free. CC contend (CCAB.34-35) that the cases the ALJ 

cited—which all involved products that were advertised as “free” to everyone but were not free 

for anyone—are “on-point because Intuit’s claims were false for most consumers.” That is 

wrong (even putting aside that CC’s concession that consumers could use the advertised products 

for free distinguishes this case from those cited). Intuit’s “claim[]” (id.)—that specific 

advertised products were free and available to qualifying consumers—was in fact true no matter 

who saw or heard it. Nothing in Intuit’s ads, therefore, had to be “disclaim[ed]” (CCAB.35). 

CC also wrongly contend, like the ALJ, that ads for free products must enumerate “all” 

terms and conditions associated with a product. CCAB.35; ID.220. That contradicts FTC 

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guidance that ads need only disclose the “nature and relevance” of limitations, and that if details 

“are too complex to describe adjacent to the price claim, those details may be provided by using 

a hyperlink.” GX316 at 10, A-8. CC’s response—that the same guidance says “integral part[s] 

of a claim ... should not be communicated through a hyperlink,” CCAB.35—is a non-sequitur. 

What is “integral” is not “all terms and conditions,” CCAB.35, but the “nature and relevance” of 

limitations, GX316 at 10, A-8. Moreover, CC have never specified the necessary details 

supposedly missing from the disclosures. 

Finally, seeking to deny that the ALJ shifted their burden, CC quote one instance in 

which he referred to “proof” that Intuit’s ads were likely to mislead, CCAB.35—ignoring the 

multiple instances (RAB.34-35) where he demanded “proof that [Intuit’s ads were] unlikely to 

mislead,” ID.221 n.42 (emphasis added); see ID.195, 197, 203. Those instances show that the 

ALJ erroneously ignored that CC “have the burden of proof,” 16 C.F.R. §3.43(a). 

2. CC improperly analyze the ads piecemeal and from their subjective 

viewpoint 

a. CC embrace the ALJ’s piecemeal analysis (RAB.35-36) of the challenged ads. 

For example, CC pretend that the ads’ qualifying language doesn’t exist, in clear violation of 

“the principle that the Commission looks to the impression made by the advertisements as a 

whole.” American Home Products Corp. v. FTC, 695 F.2d 681, 688 (3d Cir. 1982). Indeed, CC 

begin (CCAB.1) by excerpting from a challenged video ad the words “[a]t least your taxes are 

free” and one still-frame—omitting that those words followed a written disclosure (not pictured 

in CC’s still-frame) stating that (1) the ad was for the “AbsoluteZero product only,” (2) 

AbsoluteZero was “[f]or simple U.S. returns,” and (3) consumers could “[s]ee offer details at 

TurboTax.com,” RRF¶75. Nor is this an isolated instance: Every video ad CC quote contained 

some version of these three disclosures, disclosures CC always omit. CCAB.1-2, 13. Similarly, 

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CC quote (CCAB.13) a paid-search ad but omit its statement that “50 Million Americans Can 

File With TurboTax® Free Edition,” which discloses that a specific product was free and that 

not all Americans could use it, CCPF¶445. 

When CC do acknowledge the disclosures, they analyze each in isolation, contrary to the 

requirement to consider “the juxtaposition of various phrases” in “the entire document” that 

reasonable consumers see or hear, Policy Statement on Deception, 103 F.T.C. 174, 176 (1983); 

accord S.C. Johnson & Son, Inc. v. Clorox Co., 241 F.3d 232, 238 (2d Cir. 2001). For instance, 

CC assert (CCAB.14-15) that the naming of a specific product alone is not “adequate[]” because 

it “doesn’t convey the [offer’s] terms” (accord ID.171). That never happened; Intuit’s ads 

included additional disclosures that conveyed each offer’s scope. Similarly, CC contend 

(CCAB.15-16) that saying “simple tax returns only” is “inadequa[te]” because consumers might 

not know what that phrase means. Apart from being wrong, RAB.16, this and the ALJ’s similar 

assertion, ID.172, ignore that Intuit’s ads contained additional disclosures. And the evidence 

shows that reasonable consumers who viewed the ads and their disclosures did not mistakenly 

believe that they could file for free. RAB.21-29. 

Lastly, the ads from which CC selectively excerpt are unrepresentative and often not 

properly part of this case. Indeed, CC prominently cite an ad (RX200) from outside the period 

referenced in CC’s complaint. RRF¶50. Like the ALJ, CC ignore this point. Meanwhile, the 

one search-result ad CC cite (CCAB.13) is nothing like any other search-result ad in the record. 

RPF¶¶266-269, 272-275. 

b. Again repeating an ALJ error, CC analyze the ads from their subjective 

viewpoint, ignoring reasonable consumers’ perspective. RAB.36-37. For instance, CC ignore 

evidence about the adequacy of Intuit’s disclosures, including Peter Golder’s analyses. Golder 

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determined that the challenged ads (1) communicated qualifications and other information in a 

manner consumers understand, and (2) appropriately directed consumers to the TurboTax 

website for more information. RPF¶¶239, 312-316; RRF¶¶693-694, 699, 702. And while CC do 

address Golder’s analysis showing that Intuit’s disclosures were comparable or superior to those 

in the ads of 18 benchmark companies, RPF¶¶234-237, 258-259, they incorrectly dismiss it as 

“speculative,” CCAB.26. That benchmarking analysis was based on objective measurements of 

disclosures’ size, duration, position, and format, RPF¶236. Contrary to CC’s assertion that 

Golder’s disclosure-benchmarking was “well-rebutted,” CCAB.36, CC’s expert effectively 

conceded that Golder’s metrics are legally relevant because they come from FTC guidelines, 

RPF¶927. CC also fail to grapple with cases (RAB.14) approving disclosures smaller than other 

ad text. 

3. CC’s continued reliance on the deceptive-door-opener theory is 

misplaced 

CC misstate Intuit’s position concerning the deceptive-door-opener theory. Intuit does 

not seek to “change black-letter law” or “overturn decades of caselaw.” CCAB.37-38. Intuit 

asks the Commission to apply the law correctly. The deceptive-door-opener cases that CC cite 

involved actual doors. The theory originated when a rental-car company misled consumers into 

visiting its brick-and-mortar facility. See Resort Car Rental Systems, Inc. v. FTC, 518 F.2d 962 

(1975). The other cases concerned door-to-door salesmen who lied to get into consumers’ 

homes. See Encyclopaedia Britannica, Inc., 87 F.T.C. 421 (1976); Grolier, Inc., 99 F.T.C. 379 

(1982). Intuit has never argued that these cases were wrongly decided; they simply do not 

control. 

It is CC who request new law in asking for such an application. No precedent supports 

CC’s assertion that “[t]he [door-opener] doctrine applies ... no matter the medium,” CCAB.37 

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n.18. In fact, multiple cases indicate that the theory does not apply online. RAB.39. CC 

contend (CCAB.38) that those cases actually just “found as a factual matter that the challenged 

claims were not deceptive.” But the reason those courts found no deception was because the 

relevant information was eventually disclosed on a webpage that “a customer sees before” 

purchasing the advertised product, Washington v. Hyatt Hotels Corp., 2020 WL 3058118, at *5 

(N.D. Ill. June 9, 2020); see Harris v. Las Vegas Sands L.L.C., 2013 WL 5291142, at *5 (C.D. 

Cal. Aug. 16, 2013). That is inconsistent with the door-opener theory. 

CC likewise fail to rebut Intuit’s explanation of why the deceptive-door-opener theory 

does not apply here. As the ALJ stated, applying the theory here means “it doesn’t matter what a 

consumer sees at the website” because all that would matter is that the ads “induced [consumers] 

to the website.” RPF¶467. But unlike information accessible only at a brick-and-mortar 

location, information on a website is literally at consumers’ fingertips. That means it does matter 

what a consumer sees at the website, because courts in deceptive-advertising cases must 

“consider[] other information readily available to the consumer,” Moore v. Trader Joe’s Co., 4 

F.4th 874, 882 (9th Cir. 2021); see Bell v. Publix Super Markets, Inc., 982 F.3d 468, 477 (7th 

Cir. 2020). CC’s attempt to cabin this precedent (CCAB.37-38) fails; the cases stand for “the 

general principle that deceptive advertising claims should take into account all the information 

available to consumers,” Moore, 4 F.4th at 882 (emphasis added). 

Next, CC fail to explain why the reasons the door-opener theory was rejected in FTC v. 

DirecTV, 2018 WL 3911196 (N.D. Cal. Aug. 16, 2018), do not apply here. CC note (CCAB.38) 

that “[t]he ALJ spent ... three pages” on DirecTV. But those pages contain only unsupported 

distinctions and a conclusory recitation of the ALJ’s flawed falsity holding. RAB.39-40. 

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CC further assert (CCAB.38) that rejecting the deceptive-door-opener theory here means 

accepting that any “deception caused by [Intuit’s] ads could be cured at the website.” Not so. 

Putting aside that there is no deception to cure, Intuit’s argument is that the easily accessible 

TurboTax website (which consumers had to visit to use TurboTax) was incorporated into the 

challenged ads that invite and/or hyperlink consumers there. In fact, CC and the ALJ agreed that 

the website is “integrated into” the ads. CCPF¶455; IDF¶348. That proposition is unassailable 

given the requirement to consider all “information readily available to the consumer,” Moore, 4 

F.4th at 882; accord Marksberry v. FCA US LLC, 606 F.Supp.3d 1075, 1083 (D. Kan. 2022). 

And it is undisputed that consumers told to “see if you qualify” would have done just that on 

TurboTax.com. 

Finally, CC are wrong that the TurboTax website is itself deceptive. CCAB.18-19. The 

site displays myriad disclosures before consumers must input any information. RPF¶469; see 

RPF¶¶372-452. CC’s cherry-picked statements (CCAB.19) do not change that fact. 

In sum, the deceptive-door-opener theory provides no basis to disregard the TurboTax 

website, and consideration of the website defeats CC’s claim. 

B. The Record, Properly Considered, Establishes That None Of The Challenged 

Ads Was Deceptive 

1. No ad conveyed that “TurboTax is free” 

CC are right that “Intuit advertises TurboTax Free Edition as free.” CCAB.3. That is 

because Free Edition and the other free offers advertised were free. But the challenged ads did 

not convey, expressly or implicitly, that the entire product lineup under the brand TurboTax is 

free. RAB.12-17. CC’s responses lack merit. 

a. CC cannot redefine “express claims” to encompass “the functional equivalent of 

express claims” (CCAB.12). “Express claims are ones that directly state the representation at 

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issue.” Thompson Medical Co., 104 F.T.C. 648, 788 (1984) (emphasis added). As CC have 

conceded, no challenged ad directly stated the false or misleading message they allege. 

RPF¶¶302-308. 

CC’s lone cited case in support of their express-claim theory—FTC v. Bronson Partners, 

LLC, 564 F.Supp.2d 119 (D. Conn. 2008)—is inapposite. There, the defendants argued that an 

ad’s weight-loss guarantee was actually just a “‘satisfaction guarantee.’” Id. at 128. The court 

disagreed because the ad expressly stated that the product was “guaranteed to help you lose 

weight,” and “the word ‘satisfaction’ appear[ed] nowhere.” Id. Intuit’s challenged ads nowhere 

stated that “TurboTax is free,” CCAB.13. They stated the product name, that it was available to 

consumers who qualified based on the complexity of their taxes, and that further details were at 

TurboTax.com. 

CC fare no better on their implied-claim theory. They cherry-pick words out of several 

ads—omitting their disclosures—and declare that those excerpts imply that “TurboTax is free.” 

CCAB.13. But contrary to CC’s misleading quotation of the FTC’s Policy Statement on 

Deception, implied claims may not be discerned “through an examination of [a] representation” 

plucked out of an ad in isolation. CCAB.12 (quoting 103 F.T.C. at 176). CC omit the portion of 

the quoted sentence explaining that the Commission must examine “the entire document” and 

“the juxtaposition of various phrases in” it, 103 F.T.C. at 176. 

b. CC fail to explain how reasonable consumers were likely to be deceived 

accounting for the challenged ads’ disclosures. RAB.15-17. 

First, the ads stated that a single product—not all TurboTax—was free. RAB.15. Citing 

a survey, CC respond (CCAB.14) that Intuit’s product names “don’t resonate with consumers 

beyond the TurboTax parent brand.” But CC’s reliance on that survey is absurd: It asked for the 

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brand advertised, to which the correct answer is TurboTax. RAB.23; see RRF¶¶609-610; Ryan 

(Intuit) Tr. 817-818. CC’s reliance on testimonials and reviews naming “TurboTax” (CCAB.14) 

is similarly misplaced, as no testimonial or review suggested that any consumer believed 

“TurboTax” was the name of a specific product rather than the brand. CC’s remaining 

argument—that the product name “arguably reinforces the ‘free’ claim,” CCAB.15 (quoting 

ID.186)—is, as explained, nonsensical and contrary to unrebutted evidence, RAB.15; RPF¶319. 

Second, the challenged ads’ “simple tax returns only” (or similar) disclosure informed 

consumers that a product did not cover everyone’s tax needs. This language did not “require 

[consumers] to understand” precisely what constituted a “simple” return (CCAB.15), because the 

language made clear that consumers might not qualify based on the complexity of their returns, 

RAB.16. The language conveyed, that is, the “nature and relevance” of the product’s limitation, 

which is what FTC guidance states must be included on an ad’s face, GX316 at A-8. CC are also 

wrong in asserting (CCAB.15) that “simple tax returns” lacks a consistent meaning. RAB.16, 

19, 20-21. And while CC claim (CCAB.21) that the ALJ “appropriately discounted” the IRS 

documents Intuit introduced on this topic, he actually stated (erroneously) that there was not 

“any IRS evidence,” ID.193 n.25 (emphasis added). Likewise, CC fail to distinguish cases 

holding that consumers are deemed as a matter of law to understand terms common in the 

relevant market (RAB.19); CC simply label the cases “inapposite” (CCAB.22), with no 

explanation. Lastly, CC are wrong that consumers do not understand “simple tax returns” 

(CCAB.17-18). They ignore the evidence showing otherwise, RAB.16, 21-24, 27-28, and their 

reliance on Nathan Novemsky’s “survey” is misplaced, infra §I.B.2.b. 

Third, the challenged ads’ invitation for consumers to “see if you qualify” or “see details” 

at TurboTax.com further disclosed that a free product was not for everyone and directed 

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consumers to the website for additional information. RAB.17. CC’s only response is that 

Novemsky’s survey “measured all the information in the marketplace,” including this language. 

Even putting aside that survey’s myriad flaws, that is untenable. Infra §I.B.2.b. 

2. CC are wrong that the record establishes that a significant minority of 

reasonable consumers was likely to be misled 

CC state that whether ads were likely to deceive can be determined based exclusively on 

a “facial[]” analysis. CCAB.20. That is wrong; extrinsic evidence, if offered, must be 

considered. Telebrands Corp., 140 F.T.C. 278, 334 (2005). Failing to do so here would be 

particularly improper, where the ads ran for seven years. There is thus abundant real-world 

evidence—including market research and Bruce Deal’s detailed analysis of TurboTax’s actual 

customers—that shows that the ads were not likely to deceive reasonable consumers. 

a. CC fail to rebut evidence concerning reasonable consumers in 

the industry 

CC offered no evidence about reasonable consumers in the tax-preparation industry, 

which dooms their claim because the ads must be considered from those consumers’ perspective. 

RB.56. CC point (CCAB.21 n.10) to the Novemsky survey, Intuit documents, and selective 

consumer feedback. But none of that speaks to reasonable consumers’ expectations about taxpreparation products. RPF¶¶481-484; RRF¶¶8, 490. 

CC’s response to Intuit’s evidence is also unavailing. CCAB.21. Their contention that 

Intuit has not proven that consumers understand competitors’ free offers is a red herring; the fact 

that the industry uses the term “simple tax returns” is itself evidence that consumers understand 

it. RPF¶¶482-483. Indeed, it strains credulity to suggest that the IRS and every major player in 

the online tax-preparation industry would consistently use a phrase that consumers do not 

understand. RPF¶¶56-59, 141-145. That is why consumers are deemed as a matter of law to 

understand such commonplace terms. RPC¶¶58-60. Moreover, CC have no response to the 

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unrebutted evidence that reasonable consumers seeing the challenged ads did not conclude “this 

is free for me.” RPF¶¶483-489, 506, 513, 523-527. Rather, consumers at most believed they 

might qualify, and understood that they would need to determine if they did. RPF¶¶487, 506, 

527. 

As for the absence of meaningful negative consumer feedback—which further shows that 

a significant minority of consumers was unlikely deceived, RAB.24-26—CC contend that 200 

complaints is “[f]ar from” miniscule, CCAB.30. But they do not explain how 200 complaints, 

from over six years, is anything but miniscule compared to the 86.4 million consumers who filed 

using TurboTax. RPF¶¶630-632. Nor do CC explain how Intuit could have engaged in a wideranging, multi-medium, multi-year deceptive marketing campaign without being overwhelmed 

with complaints. RPF¶¶625-626, 637, 639, 647. As CC’s expert recognized, a hallmark of 

deceptive advertising is a substantial number of complaints. RPF¶¶624-625. Caselaw similarly 

recognizes that deception would be reflected in “data collected on pain points, consumer 

research, sales calls, closing rates, activation rates, and churn.” DirecTV, 2018 WL 3911196, at 

*18. The lack of such evidence badly undermines CC’s claim. CC also fail to address Intuit’s 

arguments that the complaints they cite are irrelevant, unreliable, and unrepresentative of 

reasonable consumers. RPF¶¶633, 636, 917-918. 

Next, CC criticize Golder’s complaint-benchmarking analysis for excluding complaints 

made to Intuit directly and for including all Intuit Better Business Bureau complaints. 

CCAB.30-31. But far from skewing his results, those decisions render the analysis reliable, 

ensuring that Golder compared equivalent data sources and standardizing complaint rates. 

RRB.16; RRF¶¶722-723. Moreover, CC’s speculation (CCAB.31) about reasons consumers 

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might not complain does not explain why, controlling for that fact, consumers complained less 

about Intuit than other companies. RPF¶¶638-640; RRF¶¶726-732. 

CC’s reliance (CCAB.31) on CRM and Bazaarvoice data fares no better, as those data, 

fairly read, show that consumers were not deceived, RPF¶654; RRF¶¶629-630, 633-662. 

Further, CC are wrong (CCAB.31-32) that Intuit was not barred at trial from rebutting their 

CRM evidence. As explained (RAB.26), the appendix from Erez Yoeli’s previously excluded 

expert report was admitted over objection as a “summary exhibit” (GXD006), and Intuit was 

prevented from rebutting it. Either it should be disregarded or Intuit’s supplemental expert 

report should be considered. 

CC are also incorrect that Intuit wants to shift the burden to consumers. CCAB.22. Intuit 

points to evidence of what consumers already expect and how they already act. RPF¶¶471-473, 

481-483, 485-488, 502-509, 514-518, 520-522. What CC call “baseless speculation” about 

consumers’ high-involvement research process (CCAB.22) is actually uncontested evidence 

about reasonable consumers’ behavior when selecting a tax-preparation product. RPF¶¶502-509, 

513, 782, 891. And CC are wrong that consumers are likely to see only deceptive ads through 

their research; the record reflects numerous third-party websites disclosing Free Edition’s 

qualifications. RPF¶¶432-433, 505-509. 

Finally, CC shockingly argue that the Commission should cast aside the FTC’s “Free 

Guides” because they supposedly “say nothing about consumer understanding of Intuit’s free 

offers.” CCAB.21. But of course those guides do not speak specifically to the challenged ads, 

instead recognizing more broadly that the “public understands” that free offers are usually 

qualified. RPF¶476. That that reality undermines CC’s case is not grounds for ignoring it. 

Indeed, if the Free Guides must be ignored, then CC’s entire case falls apart, as CC have 

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repeatedly argued that their case is an effort to “vindicate” (and their relief is based on) those 

guides. E.g., CCB.68. 

b. CC’s expansive reliance on Novemsky’s survey is fatal to their 

case 

CC’s continued reliance on Novemsky to support nearly every facet of their case 

underscores their failure to satisfy their burden of proof. Novemsky’s survey is irrelevant and 

unreliable, and CC’s defenses of it are meritless. 

i. “Simple returns” results. CC’s defense of Novemsky’s decision to conceal 

Intuit’s disclosures from survey participants—including the phrases “see details” or “see if you 

qualify at turbotax.com”—is his testimony about “consumers’ tendency not to seek out 

additional information.” CCAB.24. But Novemsky never tested that supposed tendency. 

RRB.54. He did not even give respondents the option to indicate they would visit the website. 

There is also no basis for believing (as Novemsky’s survey assumes) that consumers would have 

seen “simple tax returns only” in isolation—the additional disclosures were next to the “simple 

returns” language so if consumers could see one, they could see the other. Moreover, 

Novemsky’s opinion that consumers generally are lazy “misers” (CCAB.16) is wrong. Intuit 

presented survey evidence that consumers review at least three different information sources on 

average when researching tax-preparation products. RPF¶505. 

Novemsky is not only incorrect about consumers’ general tendencies, but he also ignores 

that the disclosure language he concealed specifically instructed consumers to seek additional 

information. Thus, contrary to CC’s claims, it does “logically follow” that including the full 

disclosure “would materially alter [consumers’] perception of their qualification for ‘simple 

returns.’” CCAB.24 (quoting ID.191-192). In particular, it would have stopped consumers from 

interpreting the phrase based on “preconceived ideas” (CCAB.24). RRF¶¶491-492. 

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It is no response for CC to hypothesize (CCAB.16) that “Novemsky’s survey measured 

all the information in the marketplace,” and thus accounted for the effect of “see if you qualify” 

or “see details at TurboTax.com.” Novemsky could not have accounted for that effect because, 

again, he prevented consumers from seeking out additional information. To yield reliable 

results, a survey must “sufficiently approximate the manner in which consumers encountered the 

... products in the marketplace.” THOIP v. Walt Disney Co., 690 F.Supp.2d 218, 236 (S.D.N.Y. 

2010). Indeed, the Ninth Circuit recently disregarded a survey about the phrase “Nature Fusion” 

because the survey (like Novemsky’s) concealed disclosure language; given that “omission,” the 

survey was not “instructive of how the ‘reasonable consumer’ underst[ood] the phrase ... in the 

context of the products.” McGinity v. Procter & Gamble Co., 69 F.4th 1093, 1099 (9th Cir. 

2023). A similar conclusion is compelled here. 

ii. Improper survey design. CC miss the point in contending that “[u]naided surveys 

are reliable and broadly used,” CCAB.24. Novemsky’s failure was how he sought to use his 

unaided survey to test causation. RPF¶¶530-537. The ALJ correctly concluded that the survey 

cannot establish causation—i.e., the source of participants’ beliefs—because “Novemsky did not 

expose the survey participants to any ... marketing communications.” ID.190-191. CC never 

engage with that reasoning, instead repeating their conclusory assertion that “Novemsky reliably 

tested” causation because participants identified ads as the source of their impressions. 

CCAB.25. That is wrong for the (unrebutted) reasons the ALJ and Intuit provided. ID.190-191; 

RPF¶¶530-540, 590-607; RRF¶¶558-571.1 

1

 CC also waived their arguments that the ALJ erred by not filing exceptions. 16 C.F.R. 

§3.52(a)(1). 

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Next, CC assert that “the absence of a control group ... does not make a survey 

unreliable” (CCAB.25). No one disputes that general assertion. The problem here (which CC 

never address) is that controls are necessary for perception surveys. RRF¶481; RPF¶530. None 

of the cases CC cite (CCAB.24-25) refutes that: Two cases concluded that the lack of controls 

went to “weight ... rather than admissibility.” Clicks Billiards, Inc. v. Sixshooters, Inc., 251 F.3d 

1252, 1262-1264 (9th Cir. 2001); In re NJOY Inc., 120 F.Supp.3d 1050, 1077-1079 (C.D. Cal. 

2015). The third provided examples of proper survey controls, including a fictitious control 

brand used “to identify ‘noise.’” American Dairy Queen Corp. v. W.B. Mason Co., 2022 WL 

2760024, at *32 (D. Minn. July 14, 2022). Novemsky’s survey employed nothing similar. 

iii. Leading questions. CC dismiss evidence that Novemsky’s participants were 

influenced by the survey questions, arguing “that 99% of respondents were not affected.” 

CCAB.26. But CC ignore that respondents stated they were influenced by the questions without 

prompting. RRF¶¶523, 589. That is “strongly indicative of a more widespread” problem, 

RRF¶589; see RPF¶¶572-578, and belies CC’s assertion that “Novemsky employed no ‘loaded’ 

questions,” CCAB.26. 

iv. Unrepresentative, biased survey population. CC downplay Novemsky’s meager 

response rate by arguing that most participants were excluded because they “were not part of the 

target population.” CCAB.26. But Novemsky cannot exclude roughly 85% of potential 

participants for failing to meet his constrained criteria, RPF¶541, yet still say his results apply to 

all taxpayers who do not qualify for free TurboTax offers, RRF¶511. Novemsky’s broad 

exclusions mean that his sample was not representative of even that population. Moreover, 

Novemsky’s survey sample depended on consumers accurately reporting their tax situation from 

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memory before they had even done their taxes. RRF¶512. CC did not establish that those 

screening questions yielded reliable results. 

CC also have no defense of Novemsky’s choice to focus on “Group A” respondents who 

had not used TurboTax in at least three years (possibly ever) and thus were unfamiliar with Free 

Edition’s qualifications. First, CC point to results showing that respondents attributed their 

beliefs to TurboTax advertising. CCAB.27. But invoking Novemsky’s results to justify his 

sampling choices is circular. Regardless, the ALJ correctly found those results unreliable, 

ID.190-191; see RPF¶¶530-537, 590-607. Next, CC theorize that Group A must have been 

familiar with TurboTax because the challenged ads were seen billions of times (CCAB.27). But 

that figure does not establish that all consumers saw the ads. The point—to which CC have no 

response—is that Group A is less likely than other respondents to have seen or paid attention to 

the challenged ads. RPF¶¶543-549. And for the Group A respondents who did pay attention, the 

ads were necessarily immaterial because they did not use TurboTax. Nor can CC bolster Group 

A by invoking Group B’s results. CCAB.27-28. Group B merely reinforces the numerous 

design flaws in Novemsky’s survey; it would otherwise make no sense for so many respondents 

who had previously paid to use TurboTax to indicate that they could use TurboTax for free. 

RRF¶486. 

Finally, CC are wrong that a case permitting a survey to “disclose[] the FTC as its 

sponsor” justifies Novemsky’s decision to tell consumers about the survey’s purpose and then 

allow them to opt out. CCAB.28. In the case CC cite, the survey stated that it was “sponsored 

by” the Commission. CCRB, Attachment A at 9. That survey, unlike Novemsky’s, included no 

self-aggrandizing references to the “nation’s consumer protection agency” pursuing “its mission 

to protect consumers,” nor disclosed the survey’s target or the purpose of “investigat[ing] unfair 

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and deceptive conduct” (RPF¶556). As CC acknowledge (CCAB.28), caselaw holds that a 

survey’s mere reference to class-action litigation “create[d] self-interest bias.” Novemsky’s 

inflammatory language is far worse. 

c. CC misconstrue the remaining extrinsic evidence 

CC’s extrinsic-evidence arguments depend on mischaracterizing the record. 

i. Intuit copy testing and market research. As an initial matter, CC offer no 

explanation for why the TY20 Net Promoter Score study fails to show that reasonable consumers 

were not likely to be deceived. Their response—attempting to distract with two excerpts—does 

not undermine the study’s results showing that consumers were not mistaken about their ability 

to file for free. RAB.22; RPF¶¶714-721; RRF¶623. CC’s failure to directly address this 

evidence reflects both their broader unwillingness (or inability) to engage with the record and the 

weakness of their case. 

CC also misconstrue Intuit’s copy testing and marketing research, citing them out of 

context or ignoring testimony about them. CCAB.28-30. As Intuit’s executives testified, this 

material does not show that any consumers were likely deceived by the challenged ads, let alone 

a significant minority. Ryan (Intuit) Tr. 723-725, 735-740, 771-775; Rubin (Intuit) Tr. 1531-

1535. For example, CC are wrong (CCAB.29) that the TY18 copy test shows that consumers 

think of “Free Edition” as “TurboTax.” Supra pp.8-9. CC also assert (CCAB.29) that there is no 

evidence that the TY20 survey population was more likely to qualify for Free Edition, ignoring 

unrebutted testimony explaining exactly why that was the case, Ryan (Intuit) Tr. 736; RAB.23; 

RPF¶¶690-699. CC cannot prove their case by ignoring evidence they dislike. 

CC also incorrectly argue that the TY22 copy test is “unreliable” because 

 and because Intuit did not “ask respondents 

CCAB.29-30, 39. Setting aside that much the same can be said 

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of copy testing on which CC rely, the is irrelevant because Intuit is not 

citing the TY22 test to prove that the ads caused respondents to do anything. Rather, the fact 

that the share of respondents who think they qualify for Free Edition accords with the share of 

the general population actually eligible is inconsistent with deception. CC cannot rely on some 

copy testing but discount others simply because they do not like the results. 

ii. Consumer complaints and feedback. Intuit does not argue—as CC represent 

(CCAB.31-32)—that consumer satisfaction is a defense to liability. Intuit argues that the 

absence of a meaningful number of complaints (together with other consumer-experience data) 

demonstrates that a significant minority of consumers was unlikely to be deceived. RPF¶¶623-

625, 639, 646; RAB.25. Intuit’s executives and an expert all testified to that. RPF¶¶623-625, 

647. And the cases CC rely on (CCAB.30) are inapposite because while CC may not need to 

“prove that every consumer actually relied upon the misrepresentations,” CCRB.79, they do need 

to prove that a significant minority of reasonable consumers was likely to be deceived. Yet CC 

have no explanation for why a seven-year ad campaign with billions of impressions yielded no 

proof of actual deception. Supra pp.11-12. The answer is obvious: The ads were not deceptive. 

iii. Consumer-experience data. CC incorrectly assert (CCAB.32) that TurboTax 

retention and abandonment rates are not evidence that reasonable consumers were not likely 

deceived. Low retention rates and higher-than-average abandonment rates would be expected if 

consumers felt deceived; the record reflects the opposite. RPF¶¶90-93, 624, 649-651, 656-658. 

CC’s contrary arguments, supported only by their experts’ unsubstantiated say-so, do not refute 

that. RRF¶¶727-730, 737, 841-843. Moreover, the evidence is consistent with Intuit’s 

undisputed business incentives, which depend on long-term, retention-based growth. RPF¶¶83-

87, 90, 109, 187; RRF¶615. 

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iv. Consumer deposition testimony. CC misrepresent the set of consumers deposed 

here. All were identified by CC in their initial disclosures as likely to support CC’s case. 

RRF¶663. Intuit deposed a subset of them to show that even those consumers and their 

complaints did not support CC’s case. Id. That so many of those consumers did not offer 

testimony in CC’s favor, with many testifying they understood Free Edition’s qualifications, cuts 

against finding that a significant minority of reasonable consumers (and these consumers were 

not reasonable) were likely deceived. RRB.16-17. And far from a “single example” of 

unhelpful testimony (CCAB.32), Intuit pointed to testimony undermining CC’s claim from 12 

different consumers, RAB.27; RRF¶¶664-675. CC’s attempt to flip the burden to Intuit 

(CCAB.33) should also be rejected: CC had years to gather evidence from consumers to prove 

their case yet chose not to depose any consumers. 

v. TY 2021 customer-base analysis. CC’s purported “debunk[ing]” of Deal’s 

analysis (CCAB.33) makes no sense. Their response is based on hypothetical assertions that 

their expert admits are “not ... very strong.” RPF¶930. And CC’s speculation that the ALJ 

found Deal’s analysis lacking is unfounded; his analysis never mentions Deal. The only 

reasonable conclusion from that is that the ALJ either forgot Deal’s testimony existed, or he 

intentionally did not mention it. Either way, it was error: The ALJ was required to explain why 

Deal’s testimony warranted no weight, Water Quality Insurance Syndicate v. United States, 225 

F. Supp. 3d 41, 79 (D.D.C. 2016). 

vi. Additional expert analysis. CC wrongly say that John Hauser’s Disclosure 

Efficacy Survey involved “two sets of equally flawed disclaimers,” CCAB.33. The survey’s 

revised ad conspicuously informed survey participants (verbally and in writing) that “Not all 

taxpayers qualify,” and invited them to “See if [they] qualify at Vertax.com.” RRF¶¶750-751. 

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Those disclosures were comparable to the ones Intuit used in Tax Year 2022—which copy 

testing establishes were not deceptive. Id. CC also incorrectly argue that the survey “proves the 

powerful impact of Intuit’s ‘free claims.’” CCAB.33. The survey estimated that only about onethird of participants would start in Free Edition—which is consistent with the percentage of 

taxpayers who qualify for Free Edition. RRF¶768. 

II. THE PROPOSED ORDER IS UNWARRANTED AND INAPPROPRIATE 

A. CC Do Not Show That Any Cease-And-Desist Order Is Warranted 

CC fail to demonstrate the “cognizable danger of recurrent violation,” United States v. W. 

T. Grant Co., 345 U.S. 629, 633 (1953), required for any cease-and-desist order. They posit that 

Intuit’s current ads are deceptive (CCAB.39), but the only evidence concerning those ads (the 

TY22 copy test) refutes that argument, and CC’s effort to discard that evidence is unavailing, 

supra pp.17-18. 

CC also falsely characterize Intuit’s conduct as “voluntary discontinuance.” CCAB.39-

40. The binding consent order renders that doctrine inapplicable. See Environmental 

Conservation Organization v. City of Dallas, 529 F.3d 519, 528 (5th Cir. 2008). CC’s other 

arguments regarding the consent order also fail. RAB.43. 

Nor is Intuit’s intent irrelevant (CCAB.40). “[T]he bona fides of the respondent’s 

expressed intent to comply with the law in the future” is “relevant to ... whether to issue an 

order.” Benco Dental Supply Co., 2019 WL 5419393, at *75 (F.T.C. Oct. 15, 2019). And 

Intuit’s recognition that the challenged ads conveyed that Free Edition was free (CCAB.40) is 

not evidence of deception, including because Free Edition is free for all the people (millions each 

year) who use it. RRB.18-21. 

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B. CC Cannot Justify The ALJ’s Order 

Seeking to defend the proposed order’s capaciousness, CC argue (CCAB.40-41) that it 

“straightforwardly” instructs Intuit to “meet[] certain conditions.” That ignores that those 

conditions are opaque, RAB.43-44. Tellingly, CC do not defend the ALJ’s contention that an 

ambiguous order is appropriate because it might later be clarified. ID.227-228. And CC are 

wrong (CCAB.41) that the consent order “give[s] Intuit an escape hatch.” It imposes 

requirements that all 51 attorneys general determined ensure that consumers are not deceived— 

the fact that it does so clearly does not undermine its effectiveness. Nor do the consent order’s 

specifications for space-constrained ads, or any of the other supposed “loopholes,” justify the 

ALJ’s order. RRB.72-75; RRF¶¶937-941. CC offered no evidence that six-second video ads 

need verbal disclosures to avoid deceiving consumers. Nor could they, as those ads displayed 

written disclosures nonstop (RX1483), consumers do not expect and would be overwhelmed by 

more information (RPF¶¶523-524), and it would be practically impossible to include the verbal 

disclosures CC demand (RRF¶938). 

Rather than disputing the likely harm to consumers from the ALJ’s order, CC repeat the 

ALJ’s remarkable position that Intuit should stop advertising free TurboTax offers. CCAB.41. 

That would only harm consumers, leaving them unaware of the top-rated software they could use 

to file for free. RAB.45. 

CC’s defense of the ALJ’s order’s “fencing-in” relief (CCAB.41-42) also fails. CC point 

to no evidence concerning fenced-in products. Instead, after repeating arguments that Intuit 

already rebutted (RAB.45-46, RRB.84-85), CC claim that allegations against Intuit are “red 

flags” that Intuit failed to address. But CC ignore: changes made to TurboTax ads since those 

allegations (including changes the consent order required), that many of the allegations are 

unrelated to CC’s claim, and that most allegations were found meritless or never proven. 

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Unsurprisingly, CC provide no authority for the proposition that entities have an obligation to 

change their conduct in response to unsubstantiated allegations. 

Finally, CC are wrong (CCAB.42) that the proposed order is constitutional. That the 

compelled disclosure is less controversial than abortion does not mean it is “uncontroversial,” 

see National Association of Manufactures v. SEC, 800 F.3d 518, 528-530 (D.C. Cir. 2015). 

Moreover, CC repeat—with no support—the ALJ’s mistake of passing their burden of proof to 

Intuit, NIFLA v. Becerra, 138 S.Ct. 2361, 2377 (2018). 

III. THE PROCEEDING IS UNCONSTITUTIONAL AND UNTIMELY 

A. CC’s Constitutional Arguments Fail 

1. CC offer no meaningful response to Williams v. Pennsylvania, 579 U.S. 1 (2016), 

which shows that the Commissioners’ exercise of both accusatory and adjudicative functions 

violates due process, RAB.47. Instead, CC suggest (CCAB.42-43) that Williams does not apply 

in agency adjudications. But the right to a fair trial “applies to administrative agencies which 

adjudicate as well as to courts.” Withrow v. Larkin, 421 U.S. 35, 46 (1975). Because this 

proceeding does not satisfy Williams, it is unlawful.2 

Regardless, Withrow recognized that “special facts and circumstances” may make “the 

risk of unfairness ... intolerably high.” 421 U.S. at 58. Intuit has pointed to the Commission’s 

undefeated record before itself as such a fact. RAB.47. CC’s conclusory response (CCAB.43) 

that this reflects only “[s]tatistics pertaining to a relatively small number of cases” lacks any 

explanation for such an egregious home-field advantage. The unfair playing field is confirmed 

by Chair Khan’s participation despite Intuit’s motion to disqualify, the denial of which taints the 

entire process as well as the Commission itself. RAB.48. 

2

 If necessary, Intuit re-preserves its argument (RB.118) that Withrow was wrongly 

decided. 

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2. CC’s attempts to defend the improper administrative adjudication of Intuit’s 

private rights fall short. CC cite nothing to support their claim that this argument is waived, 

likely because 16 C.F.R. §3.51(b) provides that an argument is “waived” only if it “is not made a 

part of any exceptions filed with the Commission.” That is not true of this argument. RAB.48. 

Meanwhile, CC’s assertion (CCAB.43-44) that Intuit’s private rights “do not include the right to 

deceive people” is meaningless. This proceeding is adjudicating whether Intuit’s ads are 

deceptive; CC cannot avoid Article III simply by asserting that their claims are meritorious. 

3. CC’s invocation of Humphrey’s Executor v. United States, 295 U.S. 602 (1935), 

to defend the Commissioner’s tenure protections is unavailing. Humphrey’s Executor rested on 

the notion that “the FTC (as it existed in 1935) ... exercis[ed] ‘no part of the executive power.’” 

Seila Law v. CFPB, 140 S.Ct. 2183, 2198 (2020). Whatever the merits of the Supreme Court’s 

understanding of the FTC’s authority in 1935, Seila Law recognized that Humphrey’s Executor’s 

characterization of the FTC “has not withstood the test of time.” Id. at 2198 n.2. CC does not 

even argue the Commissioners’ tenure protection complies with Seila Law. Additionally, CC’s 

citation (CCAB.44) to statutory provisions to mitigate the constitutional consequences of the 

Commission’s lack of bipartisanship is misplaced; in any statute-constitution conflict, the latter 

prevails. Seila Law, 140 S.Ct. at 2211. 

As for the ALJ’s tenure protection, Jarkesy v. SEC, 34 F.4th 446 (5th Cir. 2022) 

(subsequent history omitted), applies here, and CC make no contrary argument. Instead, they 

claim (CCAB.44) that Jarkesy is wrong because the rule against dual-layer tenure protection 

supposedly does not apply to “adjudicators.” Jarkesy explained why that argument fails. 34 

F.4th at 464-465. 

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4. Intuit previously explained why CC’s response to Intuit’s non-delegation 

argument fails. RRC¶¶74-75. 

B. CC’s Timeliness Arguments Are Baseless 

The Supreme Court has repeatedly recognized the need to impose some temporal 

limitation on government actions. RAB.50. CC’s claim (CCAB.46-47) that Intuit somehow 

misled the Commission by not disclosing the factual specifics of two cases—Rothensies v. 

Electric Storage Battery Co., 329 U.S. 296, 301 (1946), and Adams v. Woods, 6 U.S. 336, 342 

(1805)—is ludicrous. Each case addressed the inherent problems with never-ending windows 

for government action. CC fail to address those problems. 

If CC are correct that laches does not apply to the government (CCAB.45), then the only 

timeliness constraint would be a borrowed statute of limitations. Thus, it is appropriate to apply 

a borrowed limitation even against the government. CC cite no binding authority holding 

otherwise. 

Conversely, if no statute of limitations applies, laches must. RAB.49-50. CC distills 

Intuit’s laches argument to the notion that the investigation took three years. CCAB.45. That 

characterization fails. During the three years, Intuit sought the FTC’s guidance on how it should 

modify its ads. Rather than providing guidance, CC refused to discuss their allegations. RPF¶4. 

The FTC’s refusal to engage while allowing multiple tax seasons to pass before bringing suit is 

exactly the kind of prejudicial delay that laches precludes. 

CONCLUSION 

The Commission should dismiss the complaint. 

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November 6, 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 

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PUBLIC FEDERAL TRADE COMMISSION | OFFICE OF THE SECRETARY | FILED 11/06/2023 OSCAR NO. 608887 -PAGE Page 31 of 31 * PUBLIC * 

CERTIFICATE OF SERVICE 

On November 6, 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 November 6, 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.