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UNITED STATES OF AMERICA 

BEFORE THE FEDERAL TRADE COMMISSION 

COMMISSIONERS: Lina M. Khan, Chair 

Rebecca Kelly Slaughter 

Alvaro M. Bedoya 

In the Matter of: 

Intuit Inc., a corporation. 

ORAL ARGUMENT REQUESTED 

Docket No. 9408 

RESPONDENT INTUIT INC.’S MOTION TO DISQUALIFY CHAIR LINA M. KHAN 

If a federal judge testified under oath that, in a case pending before her, she agreed with 

the plaintiffs’ theory of liability, referred to the operative complaint as “our” complaint, and 

adopted an interlocutor’s assertion that the defendant was an “evil actor,” that judge would 

unquestionably need to recuse herself, or else be disqualified. Recusal or disqualification would 

be even more warranted if the judge in question had, on two previous occasions, made 

statements that reasonably called her neutrality into question. That is exactly what Chair Khan 

has done in this case, and because the same rules applicable to federal judges apply to FTC 

Commissioners when they sit as adjudicators, Chair Khan must be disqualified. 

Intuit’s post-trial brief identified (at 122-123) statements by Chair Khan that, at 

minimum, created the appearance that she had prejudged the merits of this case. To the extent 

any doubt as to whether disqualification is required remained, Chair Khan erased that doubt 

during a July 13, 2023 hearing before the House Judiciary Committee, during which she both 

made and adopted inappropriate and inaccurate remarks about this case—including by referring 

to Intuit’s conduct as “deceptive,” the ultimate issue in this case—and adopted Rep. Pramila 

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Jayapal’s false statements that Intuit was an “evil actor,” and that it cost over $250 to use 

TurboTax. 

Put simply, there is now no doubt that “‘a disinterested observer [would] conclude that 

[Chair Khan] has in some measure’” prejudged this case against Intuit, Fast Food Workers 

Committee v. NLRB, 31 F.4th 807, 815 (D.C. Cir. 2022). As such, Chair Khan’s disqualification 

is required. See ABA Model Code of Judicial Conduct R. 2.11 (2020) (requiring disqualification 

where a judge “made ... public statement[s], other than in a court proceeding, judicial decision, 

or opinion, that ... appear[] to commit [her] to reach a particular result ... in the proceeding”). 

BACKGROUND 

Intuit offers a free tax preparation product called TurboTax Free Edition. Intuit’s 

Proposed Findings of Fact (“PFF”) ¶67. TurboTax Free Edition is free, and millions of 

taxpayers annually use it to file their taxes for free. PFF ¶113. An extensive evidentiary hearing 

established that Intuit’s advertisements for Free Edition were not deceptive. Complaint Counsel 

came forward with no fact witnesses or other evidence of deception or even likely deception. 

And of particular import in light of the misrepresentation that Intuit is somehow “evil,” the Court 

was able to hear from Intuit’s own employees, who credibly explained why the challenged 

advertisements were not deceptive, why it would be counterproductive and unprofitable for Intuit 

to deceive consumers, and how internal surveys and other consumer testing demonstrated the 

complete absence of deception. E.g., PFF ¶¶95, 134. 

After Chief ALJ Chappell decides the case, it will go to the full Commission for review. 

The Commissioners will not have heard live testimony or otherwise had the opportunity to assess 

the credibility of the various witnesses. And the case will go to the Commission even though a 

federal judge has already held that injunctive relief on the same ads was unwarranted. Based on 

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Chair Khan’s public statements, there is substantial and sufficient reason for Intuit to be 

concerned about whether it can get a fair hearing at that stage of the case.1

 

First, on March 29, 2022, with the Part 3 wall in place, Chair Khan retweeted, from her 

@linakhanFTC twitter account, a press release from the Commission regarding Intuit’s 

“deceptive Turbotax ‘free’ filing campaign” and the need for an “immediate halt to Intuit’ 

deceptive ads.” PFF ¶932. Then, not one month later (and with the Part 3 wall still in place), 

Chair Khan said in a widely watched public interview that Intuit had “alleged[ly]” engaged in 

“law-breaking” and that it was “incredibly important” for the FTC to stop Intuit’s unlawful 

“deceptive” conduct. PFF ¶933. 

Before trial, Intuit raised to both the ALJ and the Commission the impropriety of these 

remarks. See Intuit, Inc., 2023 WL 1861211, at *17 (F.T.C. Jan 31, 2023). Intuit further 

renewed the argument that these two remarks warranted dismissal in its pre-trial (at 84-87) and 

post-trial (at 122-125) briefing. 

On July 13, 2023, Chair Khan again commented publicly on this matter. While testifying 

before the House Judiciary Committee, Chair Khan and Rep. Jayapal engaged in the following 

exchange (emphases added): 

REP JAYAPAL: I just want to go to evil actors because there’s one more I really want to 

talk about, and that is tax preparation companies. For years, Intuit, the maker of 

TurboTax, flooded consumers with ads promising ‘free free free’ tax-filing services only 

to trick and trap them into paying, which is why taxpayers pay $250 on average each year 

just for the privilege of filing their taxes. So state attorney generals have won taxpayers 

money from Intuit and the FTC has also taken action. Can you just speak about that? 

CHAIR KHAN: Absolutely, so last year the FTC brought a lawsuit against Intuit for 

those very types of deceptive practices that are laid out in our complaint. That is still 

1

 There are other reasons for concern too, including public reporting that suggests the use 

of so-called zombie votes in this matter. 

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pending, but I couldn’t agree more that claims of something being free but then 

ultimately it not being so really hurts people.2

TurboTax Free Edition is free, and the key issue in this case is whether Intuit nonetheless 

deceptively advertised that free product as free. 

ARGUMENT 

“Both the appearance and reality of impartial justice,” the Supreme Court has explained, 

are foundational to due process and the rule of law. Williams v. Pennsylvania, 579 U.S. 1, 16 

(2016). And courts have repeatedly held that due process prohibits an agency from 

“‘adjudg[ing] the facts as well as the law of a particular case in advance of hearing it.’” Fast 

Food Workers Committee v. NLRB, 31 F.4th 807, 815 (D.C. Cir. 2022). Consistent with this 

fundamental principle, 16 C.F.R. §4.17(c) provides for the disqualification of Commissioners “in 

accordance with legal standards applicable to the proceeding in which such motion is filed.” The 

standards governing judicial disqualification apply where, as here, “Commissioners act[] as 

judges.” Intel Corp., 149 F.T.C. 1548, at *3 (2010).3

 

To determine whether due process requires disqualification, courts ask “whether a 

disinterested observer may conclude that the agency has in some measure” prejudged this case 

against Intuit. Fast Food Workers, 31 F.4th at 815; see also 28 U.S.C. §455(a) (federal judges 

shall recuse themselves from “any proceeding in which [their] impartiality might reasonably be 

questioned”). This standard is met when a disinterested observer would conclude that the 

“ultimate determination of the merits” improperly “move[d] in predestined grooves.” Cinderella 

2

 The full hearing can be found at https://www.youtube.com/watch?v=nLGku6ueO-8. 

The relevant exchange takes place from 2:07:10-2:07:56. 

3

 16 C.F.R. §4.17(b)(2) requires that a motion to disqualify “be filed at the earliest 

practicable time after the participant learns, or could reasonably have learned, of the alleged 

grounds for disqualification.” Given how soon after Chair Khan’s testimony Intuit is filing this 

motion, there is no credible argument Intuit is not acting in a timely manner. 

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Career & Finishing Schools, Inc. v. FTC, 425 F.2d 583, 589-590 (D.C. Cir. 1970). Whenever 

the question of “‘disqualification is a close one, the balance tips in favor of recusal.’” In re 

Boston’s Children First, 244 F.3d 164, 167 (1st Cir. 2001). 

Here, it is not close. Chair Khan clearly expressed her (erroneous) view on multiple 

occasions—all before the case was fully before her on a complete record—that Intuit’s ads were 

deceptive in precisely the manner alleged by Complaint Counsel. 

Chair Khan’s recent colloquy with Rep. Jayapal—both the words Chair Khan said 

herself, and the remarks of Rep. Jayapal that she effectively adopted—confirm that, at minimum, 

a reasonable observer would believe that Chair Khan already deems Intuit guilty of the 

allegations raised in the complaint, notwithstanding that the ALJ has yet to even issue his initial 

decision. When Rep. Jayapal asked if Chair Khan could “speak about” the FTC’s pending case 

against Intuit, the appropriate response needed to be “no.” See In re Boston’s Children First, 

244 F.3d at 166 (disqualifying a judge based on a statement she made when “asked about” a 

pending case). Instead, Chair Khan said “[a]bsolutely,” and proceeded to note that the matter 

concerns “deceptive practices that are laid out in our complaint.” Two points stand out from that 

answer. First, Chair Khan did not include even a perfunctory “alleged” qualifier before 

characterizing Intuit’s practices as deceptive. And second, by using the phrase “our complaint,” 

Chair Khan acknowledged ownership of the complaint and her place on the same team as 

Complaint Counsel. Any disinterested observer who watched that exchange would form the 

impression that Chair Khan agreed with both Rep. Jayapal and Complaint Counsel on the merits. 

Courts have invalidated FTC actions tainted by statements far less problematic. For 

example, in American Cyanamid Co. v. FTC, 363 F.2d 757, 763, 767 (6th Cir. 1966), an action 

was invalidated because the Commission’s Chair at the time had merely investigated similar 

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“facts and issues” to those in the proceeding in question. Recusal was necessary, the court 

explained, because FTC proceedings “‘must be attended, not only with every element of fairness 

but with the very appearance of complete fairness,’” and that “[w]herever there may be 

reasonable suspicion of unfairness, it is best to disqualify.” Id. at 767. The D.C. Circuit 

subsequently embraced American Cyanamid’s reasoning when it invalidated a commission order 

holding a company liable for deceptive practices because the Commission’s then-Chair made 

public statements appearing to condemn particular industries—including the industry of the 

company in question—as engaging in deceptive practices. Cinderella, 425 F.2d at 584-585. 

Chair Khan’s characterization of Intuit’s “practices” as “deceptive” went beyond merely 

investigating issues relevant to this proceeding or commenting on practices of a particular 

industry; rather, she expressly commented on the most important issue at the heart of the trial. 

There is no doubt a judge who said what Chair Khan did would have to recuse. Because 

“comments ... sufficiently open to misinterpretation so as to create the appearance of partiality, 

even when no actual prejudice or bias existed” necessitate recusal, In re Boston’s Children First, 

244 F.3d at 170, judicial recusals have been required merely for characterizing one case as “more 

complex” than another, id.at 166, or for telling the press that people who voiced an intention to 

disregard the judge’s injunction were “breaking the law,” United States v. Cooley, 1 F.3d 985, 

990, 995 (10th Cir. 1993). Chair Khan is held to the same standard as judges. Supra p.4. And 

her remarks, particularly when made under oath in the very public setting of a Congressional 

hearing, at the very least pose an unconstitutional risk of “entrenching [her] in [the] position 

which [s]he had publicly stated.” Cinderella, 425 F.2d at 590. 

Equally troubling were the many premises embedded in Rep. Jayapal’s remarks, with 

which Chair Khan did not voice any disagreement. Rep. Jayapal’s remarks are relevant because 

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they provide the context in which Chair Khan’s subsequent statements were made and color how 

a reasonable observer would interpret Chair Khan’s statements in response. Indeed, at least one 

court has held that an FTC Chair’s recusal was warranted based on words that were not entirely 

his own. See, e.g., American Cyanamid, 363 F.2d at 763. 

To start, Rep. Jayapal referred to Intuit as “evil.” A statement that a party before a court 

is “evil” goes far beyond the relatively banal remarks and conduct cited above as warranting 

disqualification. Rep. Jayapal’s unfounded attack against Intuit—inappropriate on any record—

was particularly improper here because the record in this case firmly belies the notion that Intuit 

is, to use Rep. Jayapal’s word, “evil.” See PFF ¶¶33-38, 171, 852, 860, 870. In particular, the 

record showed unequivocally that if Intuit ever believed it was running a deceptive or misleading 

ad, the company would have taken steps to ensure that ad would stop running immediately, PFF 

¶174.

Rep. Jayapal’s assertion that Intuit “trick[ed] and trap[ped]” consumers “into paying” an 

average of $250 annually to file their taxes is also as problematic as it is untrue. That statement, 

which suggests that Intuit’s ads were inaccurate and that consumers had no choice but to use a 

paid TurboTax service after being lured under false pretenses by Intuit, comments on core issues 

that have been disputed throughout the proceeding and were unsupported at trial. None of the 

challenged ads falsely promoted a free product, Intuit Post-Trial Br. 37-49, there is no evidence 

reasonable consumers were deceived into thinking TurboTax was free for them when it was not, 

e.g., id. at 82-92, and there is no evidence consumers felt trapped into using paid SKUs, e.g., id.

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at 53-54, 95. But regardless of the underlying truth, staking out an “entrench[ed] ... position” on 

these fundamental issues violates Intuit’s due process rights. Cinderella, 425 F.2d at 590.4

In sum, Chair Khan’s recent statements before the House Judiciary Committee, especially 

given her two earlier exhibitions of prejudice against Intuit, show that Chair Khan “‘has 

demonstrably made up [her] mind about important and specific factual questions and is 

impervious to contrary evidence.’” Fast Food Workers Committee, 31 F.4th at 815. Because 

she has repeatedly expressed her apparent view on the ultimate issue in this case—including by 

stating without qualification that Intuit has engaged in “deceptive practices” and that she 

“couldn’t agree more” that Intuit’s purportedly deceptive conduct “really hurts people”—Chair 

Khan must be disqualified.5

 Moreover, given her status as Chair of the Commission, Chair 

Khan’s disqualification is particularly necessary because failure to do so would necessarily taint 

the remaining commissioners through any deliberations that may later occur. See Berkshire 

Employees Ass’n of Berkshire Knitting Mills v. NLRB, 121 F.2d 235, 239 (3d Cir. 1941) 

(“Litigants are entitled to an impartial tribunal whether it consists of one man or twenty and there 

is no way which we know of whereby the influence of one upon the others can be quantitatively 

measured.”).6

 

4

 Intuit’s discussion of Complaint Counsel’s failure of proof in this case should not be 

read to suggest that disqualification depends on whether or not Chair Khan correctly prejudged 

the case. Rather, Chair Khan must be disqualified because her statements, at the least, suggest to 

a reasonable observer that she has prejudged the merits. That she has prejudged the case 

incorrectly matters because it shows that she prejudged the case improperly to begin with. 

5

 Complaint Counsel’s post-trial reply brief centers (at 111-112) its defense of Chair 

Khan’s pre-trial statements on (1) the prior rejection of Intuit’s bias argument, and (2) the fact 

that Intuit had not sought to disqualify Chair Khan. Those arguments were flawed when made, 

see Intuit Post-Trial Reply Br. 87, and they are untenable now given Chair Khan’s colloquy with 

Rep. Jayapal and Intuit’s prompt filing of this motion in response. 

6

 Intuit reserves the right to argue that such a taint has already occurred. 

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CONCLUSION 

Chair Khan should be disqualified. 

Dated: August 7, 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 

Telephone: (212) 230-8800 

David.Gringer@wilmerhale.com 

HOWARD M. SHAPIRO 

JONATHAN E. PAIKIN 

JENNIFER MILICI 

DEREK A. WOODMAN 

Wilmer Cutler Pickering 

 Hale and Dorr LLP 

1875 Pennsylvania Ave NW 

Washington, DC 20006 

Telephone: (202) 663-6000 

Howard.Shapiro@wilmerhale.com 

Jonathan.Paikin@wilmerhale.com 

Jennifer.Milici@wilmerhale.com 

Derek.Woodman@wilmerhale.com 

Attorneys for Respondent Intuit Inc.

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UNITED STATES OF AMERICA

BEFORE THE FEDERAL TRADE COMMISSION 

COMMISSIONERS: Lina M. Khan, Chair 

 Rebecca Kelly Slaughter 

 Alvaro M. Bedoya 

In the Matter of: 

Intuit Inc., a corporation. Docket No. 9408 

PROPOSED ORDER

 Upon consideration of Intuit’s Motion to Disqualify Chair Lina M. Khan: 

IT IS HEREBY ORDERED, that the Motion is GRANTED. 

ORDERED: ___________________________ 

Lina M. Khan 

Chair of the Federal Trade 

Commission 

Date: ______________________ 

 

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CERTIFICATE OF SERVICE 

I hereby certify that on August 7, 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 

Administrative Law Judge 

600 Pennsylvania Ave., NW, Rm. H-110 

Washington, DC 20580 

I further certify that on August 7, 2023, I caused the foregoing document to be served via 

email to: 

Roberto Anguizola 

Federal Trade Commission 

600 Pennsylvania Avenue, NW 

Washington, DC 20580 

Email: ranguizola@ftc.gov 

Tel: (202) 326-3284 

Rebecca Plett 

Federal Trade Commission 

600 Pennsylvania Avenue, NW 

Washington, DC 20580 

Email: rplett@ftc.gov 

Tel: (202) 326-3664 

James Evans 

Federal Trade Commission 

600 Pennsylvania Avenue, NW 

Washington, DC 20580 

Email: jevans1@ftc.gov 

Tel: (202) 326-2026 

Counsel Supporting the Complaint 

Sara Tonnesen 

Federal Trade Commission 

600 Pennsylvania Avenue, NW 

Washington, DC 20580 

Email: stonnesen@ftc.gov 

Tel: (202) 326-2879 

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 

Administrative Law Judge 

600 Pennsylvania Ave., NW, Rm. H-110 

Washington, DC 20580 

Dated: August 7, 2023 Respectfully submitted, 

/s/ Derek Woodman 

Derek Woodman 

Counsel for Intuit Inc.

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