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UNITED STATES OF AMERICA 

FEDERAL TRADE COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

In the matter of: 

Intuit Inc., a corporation, 

Respondent. 

Docket No. 9408 

COMPLAINT COUNSEL’S OPPOSITION TO INTUIT’S MOTION IN 

LIMINE TO EXCLUDE NON-FINAL OR INCOMPLETE ADVERTISEMENTS 

At issue in this case are Respondent Intuit Inc.’s (“Intuit”) widely-disseminated 

advertisements for its free TurboTax product, including advertisements and marketing 

materials like those that run on television, play on one’s social media, and show up 

when you scroll through a website. Intuit now asks the Court to disregard evidence 

relating to those forms of advertisements if it is presented in still images, or excerpts, as 

Intuit refers to them—an argument that, if taken to its logical end, would mean that no 

litigant could introduce evidence of a video advertisement or a website in pleadings, or 

introduce those images at trial—an outcome that is not supported by case law or 

common sense. In supporting its position, Intuit gets wrong both the state of the law 

and the facts of the case. The Motion in Limine to Exclude Non-Final or Incomplete 

Advertisements (the “Motion”) therefore should be denied. 

I. Motion In Limine Standard 

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

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

Wonderful LLC, 2011 FTC LEXIS 79, at *7 (May 6, 2011) (citations omitted). “Evidence 

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

on all potential grounds.” Id. at *7-8. Rule 3.43, which governs the admission of 

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

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

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

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

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

needless presentation of cumulative evidence.” Id. 

II. Intuit’s Case Law is Inapposite 

While Intuit accuses Complaint Counsel (“CC”) of “leaving out important 

contextual information that ... Complaint Counsel would like the Court not to see,”1 

(Mot. at 3, emphasis in original), Intuit has misrepresented the state of the law and left 

out “important contextual information” about the cases it cites in support of its Motion. 

A discussion of each of those cases follows below. 

Caselaw on the need to view ads in their “entirety.” Intuit first argues that, in 

reviewing FTC actions prohibiting unfair and deceptive advertising under the FTC Act, 

“a court must consider the advertisement in its entirety.” Mot. at 2 (citing S.C. Johnson & 

Son, Inc. v. Clorox Co., 241 F.3d 232 (2d Cir. 2001)). In that case, however, the Second 

Circuit upheld the district court’s ruling that the challenged advertisements depicting 

two sandwich bags—one leaking (the competitor) and one not (the company offering 

the ads)—were literally false in violation of the Lanham Act, 15 U.S.C. § 1125(a), and 

upheld the injunction issued against the defendant. In the first passage Intuit cites, the 

court, setting forth the standard of review it applies to the district court’s holding that 

the ads were false because they misrepresented the propensity of a competitor’s bag to 

leak (the question of completeness of the ads offered into evidence was never raised), 

stated: “fundamental to any task of interpretation is the principle that text must yield to 

context.” S.C. Johnson, 241 F.3d at 23 (emphasis added). The Second Circuit cited Avis 

Rent a Car System, another case brought by a private corporation under the Lanham Act. 

1 Although Intuit suggests that CC has selectively excerpted its exhibits to hide certain

information from the ALJ (which is not the case), it never explains why the exhibits

shouldn’t be allowed to come into evidence, followed by Intuit introducing the

supposedly obscured information at trial or in post-trial briefing—achieving Intuit’s

dual goals of correcting the record and disparaging CC. 

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Id. (quoting Avis Rent a Car Sys. v. Hertz Corp., 782 F.2d 381, 385 (2d Cir. 1986)). To arrive 

at a case considering a violation of the FTC Act, one must follow the internal case 

citations back further from Avis to FTC v. Sterling Drug, Inc., 317 F.2d 669 (2d Cir. 1963). 

In that case, the Second Circuit affirmed the FTC’s ruling that the defendant engaged in 

false advertising in violation of the FTC Act. In the passage from which Intuit 

selectively quoted, the court affirmed that a finding against a defendant is appropriate 

absent proof of actual deception “when the representations made have a capacity or 

tendency to deceive.” 

[T]he cardinal factor is the probable effect which the advertiser’s 

handiwork will have upon the eye and mind of the reader. It is 

therefore necessary in these cases to consider the advertisement in 

its entirety and not to engage in disputatious dissection. The 

entire mosaic should be viewed rather than each tile separately. 

The buying public does not ordinarily carefully study or weigh 

each word in an advertisement. The ultimate impression upon the 

mind of the reader arises from the sum total of not only what is 

said but also of all that is reasonably implied. 

Id. at 674. 

Far from a prescriptive measure against excerpts of an advertisement being 

introduced as evidence, then, Sterling Drug and its progeny can better be understood as 

a mandate that courts weighing a violation of the FTC Act should consider the overall 

message the challenged ad conveyed to the consumer. See FTC v. Cyberspace.com, LLC, 

453 F.3d 1196, 1200 (9th Cir. 2009) (rejecting defendant’s argument that the fine print on 

the back side of a check setting forth the terms of a contract that would be accepted 

upon deposit precludes FTC Act liability, as “[a] solicitation may be likely to mislead by 

virtue of the net impression it creates even though the solicitation also contains truthful 

disclosures”); Time Warner Cable, Inc. v. DIRECTV, Inc., 497 F.3d 144, 154-158 (2d Cir. 

2007) (upholding the lower court’s finding that defendant engaged in false advertising 

in violation of the Lanham Act over defendant’s argument that the message of the 

challenged ad was limited to the spoken words “settling for cable would be illogical,” 

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since the “message conveyed by the commercial as a whole,” includes its accompanying 

images); Am. Home Prod. Corp. v. FTC, 695 F.2d 681, 887-88 (3d Cir. 1982) (holding that 

the FTC is not required to present “direct evidence that consumers were in fact misled,” 

and instead has the right to scrutinize “not only the words used” in a television ad, but 

also “visual and aural imagery” contributing to the “impression made by the 

advertisements as a whole”). In this line of cases, then, the courts are concerned not 

about whether the FTC has excerpted an ad in a misleading way, as Intuit suggests, but 

instead is an admonition to defendants against focusing on a prescriptively narrow “tile” 

in an ad (such as a disclosure) when the “mosaic” of the ad that the consumer 

encounters is misleading. 

Caselaw on Incomplete Evidence. Intuit next cites, in summary fashion, two 

cases that stand for the uncontroversial principal that courts should not be presented 

with incomplete evidence where proscribed from doing so by the Federal Rules of 

Evidence, such as where the omission would be misleading. See Mot. at 2-3. Nothing in 

either of these cases, however, supports excluding the specific exhibits Intuit challenges, 

particularly before CC has sought to introduce them at trial. In United States v. Thiam, an 

appeal stemming from a defendant’s conviction in a money laundering scheme, the 

Second Circuit affirmed the lower court’s ruling precluding the defendant from playing 

at trial certain excerpts of his post-arrest interview with the FBI. 934 F.3d 89, 96 (2d Cir. 

2019). The court rejected Thiam’s argument that the lower court erred when it admitted 

portions of the FBI interview while excluding others, holding that the doctrine of 

incompleteness does not require that an entire document be introduced, and, because 

Thiam testified at trial regarding the same facts, “the jury had before it the 

information,” rendering any potential error harmless. Id. (Notably, Intuit, too, will have 

the opportunity to test the exhibit through cross examination or by use with its own 

witnesses.). Laurel Rd. Bank v. CommonBond, Inc., is no more helpful to Intuit. In that 

case, the court in its published opinion reproduces an image of the defendant’s 

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advertisement, and includes a footnote to the advertisement wherein the court notes 

that, at oral argument, the defendant objected to the admissibility of the ad because the 

image omitted some text. See 2019 WL 1034188, at *1 n.3 (S.D.N.Y. Mar. 5, 2019). In the 

court’s footnote, it addresses the rule of completeness, including an analysis of the 

purpose for which the advertisement was introduced, and concludes that the 

challenged image of the advertisement “convey[ed] enough of the advertisement that 

the omission of the footnote text does not render it inadmissible.” Id. These cases 

demonstrate that a portion of a document can come into evidence, as long as the 

“incomplete statement conveys the substance and context of the statement as a whole,” 

id.—a test best determined at trial and not in a preemptive motion in limine. 

Bracco Diagnostics. In the end, Intuit cites a single case where a court held that a 

document should be excluded on the basis that it had been excerpted or otherwise 

edited: Bracco Diagnostics, Inc. v. Amersham Health, Inc., 627 F.Supp.2d 384, 452 (D.N.J. 

2009). In Bracco, a case brought under the Lanham Act, the court considered a post-trial 

challenge to an expert’s trial testimony, as well as that expert’s survey designed to test 

the impact of medical marketing materials, on the basis that the survey itself was 

flawed because it “withheld from the [survey] respondents large amounts of ... 

essential visual, contextual and informational portions” of brochure it was designed to 

test. Id. at 452-53. In designing the survey, for example, the expert selected three 

“snippets” from the marketing brochure and presented them to survey participants 

orally, even though the brochure (and therefore each snippet) was meant to be read. Id. 

In excluding the expert testimony and survey, the court reviewed the specific language 

of the survey questions and engaged in a highly specific analysis analyzed how the 

brochure had been excerpted, citing to specific details (such as graphs and bullet points) 

the omission of which meant that the survey (and therefore the expert’s testimony 

about the survey) had no probative value as to whether the brochure itself was false or 

misleading. Id. At best, then, Bracco demonstrates that the admissibility of evidence that 

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relies, in part or in whole, on an excerpt of an advertisement is a highly specific factual 

inquiry that requires close examination of the challenged exhibit. 

III. All Challenged Exhibits Should be Admitted 

As set forth above, Intuit has not demonstrated that any basis in law exists to 

grant the kind of broad relief it seeks, excluding entire categories of documents before 

trial. Instead, to the extent any of the cases Intuit cites have bearing on the actual 

exhibits it seeks to exclude, the weight of the authority strongly implies that a decision 

to exclude an exhibit because it is not probative or is misleading should not be granted 

as to general categories of documents, such as still captures of video ads, and is most 

appropriately granted at or after trial, when the purpose for which the evidence is 

offered can be evaluated. By seeking to exclude more than sixty exhibits, in whole or in 

part, based on summary, often unsupported challenges, Intuit cannot show that the 

challenged exhibits are “clearly inadmissible on all potential grounds.” Specifically, 

Intuit seeks to exclude the following: 

• Draft Scripts for Television Ads: In two sentences, Intuit asks this court to 

exclude exhibits that it purports are draft advertisements because the exhibits 

depict ads that, according to Intuit, were never disseminated to consumers. Intuit 

has provided no support that CC should be precluded from entering into 

evidence drafts of Intuit’s own advertisements, nor is it implausible that such 

evidence could be admitted. In fact, this Court has held that drafts of advertising 

materials are relevant, see In re Natural Organics, 2001 FTC LEXIS 31, *3 (March 

15, 2001), and has admitted ads at trial without establishing whether they were 

disseminated, In re Rentacolor, Inc., 1984 FTC LEXIS 66, *26 (April 16, 1984). One 

can imagine, for example, CC introducing a draft advertisement to an Intuit 

witness and eliciting testimony on the changes between a draft ad and a final ad. 

• Screenshots of Intuit’s (1) Website and Web Ads, (2) Marketing Emails, 

(3) Videos Ads, and (4) Social Media ads: The thrust of Intuit’s argument is that 

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the challenged exhibits depict a still image of otherwise dynamic information, 

such as a website, hyperlink, or video, so that the exhibit does not convey the 

advertisement or website as it would appear to consumers. See Mot. at 3-4.2 As 

an initial matter, Intuit deposed the investigator who made the captures and had 

ample opportunity to develop evidence that the captures were taken in a manner 

to make them unreliable. To the extent Intuit worries that the screenshots “might 

be confused with complete ads,” this is mitigated both because Intuit can correct 

any confusion at trial or in post-trial briefing but, more importantly, because this 

is not a jury trial, and the Court is equipped to understand and weigh the 

evidence. Finally, Inuit argues that these exhibits are cumulative of the complete 

ads. Mot. at 5. It would be a waste of judicial resources, however, to require CC 

to show an entire television ad, or walk a witness through a live website, each 

time it wants to introduce evidence of the ad or website. It would, moreover, be 

impossible to do those things in post-trial briefing, such that it is not cumulative 

to have both a dynamic and still frame of the same website or ad. 

• Screenshots of Third-Party Websites that Host Free TurboTax Video Ads: 

Intuit never addresses these exhibits in the body of its motion other than to list 

their GX numbers, and therefore has not met its burden to exclude them. 

• Excerpts from Search Engine Results: Intuit objects to the captures of search 

engine results because the search result pages “provide little context to discern 

how a term is actually used on the webpage that can be accessed through the 

search result link.” Mot. at 4 (citations omitted). What Intuit ignores, however, is 

that search engine results contain both organic and paid advertising for Intuit’s 

free product in the text of the search results—marketing that is captured in these 

exhibits. Intuit’s argument is irrelevant and ignores its own advertising channels. 

2 In important respects, Intuit’s argument is factually wrong—consumers certainly see 

the top portion of a website in their browser, but there is no guarantee they will actually 

scroll down or click on links. 

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— — — 

For each of the categories of documents Intuit seeks to exclude, it has failed to 

demonstrate that the more than sixty exhibits are “clearly inadmissible,” and Intuit’s 

motion in limine should be denied. 

Respectfully submitted, 

Dated: February 24, 2023 /s/ Sara Tonnesen 

Roberto Anguizola, IL Bar No. 6270874 

Rebecca Plett, VA Bar No. 90988 

James Evans, VA Bar No. 83866 

Sara Tonnesen, MD Bar No. 1312190241 

Federal Trade Commission 

600 Pennsylvania Ave., NW, CC-6316 

Washington, DC 20580 

(202) 326-3284 / ranguizola@ftc.gov 

(202) 326-3664 / rplett@ftc.gov 

(202) 326-2026 / james.evans@ftc.gov 

(202) 326-2879 / stonnesen@ftc.gov 

Counsel Supporting the Complaint

Federal Trade Commission 

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CERTIFICATE OF SERVICE 

I hereby certify that on February 24, 2023, I electronically filed the foregoing 

Complaint Counsel’s Opposition to Intuit’s Motion In Limine to Exclude Non-Final or 

Incomplete Advertisements electronically using the FTC’s E-Filing system, and I caused 

the foregoing document to be sent via email to: 

April Tabor

Office of the Secretary

Federal Trade Commission 

600 Pennsylvania Avenue, NW 

Suite CC-5610 

Washington, DC 20580 

ElectronicFilings@ftc.gov 

Secretary of the Commission

Clerk of the Court 

Hon. D. Michael Chappell

Chief Administrative Law Judge

Federal Trade Commission 

600 Pennsylvania Avenue, NW 

Suite H-110 

Washington, DC 20580 

Administrative Law Judge 

I further certify that on February 24, 2023, I caused the foregoing document to be 

served via email on: 

David Z. Gringer

Phoebe Silos 

Charles Bridge

Wilmer Cutler Pickering Hale & Dorr LLP

7 World Trade Center 

250 Greenwich Street 

New York, NY 10007 

David.Gringer@wilmerhale.com

Phoebe.Silos@wilmerhale.com 

Charles.Bridge@wilmerhale.com

(212) 230-8800 

Shelby Martin

Wilmer Cutler Pickering Hale & Dorr LLP

1225 Seventeenth Street, Suite 2600 

Denver, CO 80202 

Shelby.Martin@wilmerhale.com

(720) 274-3135 

Katherine Mackey

Wilmer Cutler Pickering Hale & Dorr LLP

60 State Street 

Boston, MA 02109 

Katherine.Mackey@wilmerhale.com

(617) 526-6000 

Jonathan E. Paikin 

Jennifer Milici 

Derek A. Woodman 

Vinecia Perkins 

Andres Salinas 

Spencer Todd

Jocelyn Berteaud

Benjamin Chapin

Margaret (Molly) Dillaway

Reade Jacob 

Wilmer Cutler Pickering Hale & Dorr LLP

1875 Pennsylvania Avenue NW 

Washington, DC 20006 

Jonathan.Paikin@wilmerhale.com 

Jennifer.Milici@wilmerhale.com 

Derek.Woodman@wilmerhale.com 

Vinecia.Perkins@wilmerhale.com 

Andres.Salinas@wilmerhale.com 

Spencer.Todd@wilmerhale.com

Joss.Berteaud@wilmerhale.com 

Benjamin.Chapin@wilmerhale.com

Molly.Dillaway@wilmerhale.com

Reade.Jacob@wilmerhale.com 

(202) 663-6000 

Attorneys for Respondent, Intuit Inc. 

/s/ Sara Tonnesen 

Sara Tonnesen 

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