UNITED STATES OF AMERICA

Federal Trade Commission

WASHINGTON, D.C. 20580

Office of the Chair

Statement of Chair Lina M. Khan 

Regarding the Petition for Recusal from

Involvement in Intuit Inc.

Commission File No. 9408 

Respondent Intuit Inc. (“Intuit”) has filed a petition under Rule 4.17(b)(1) in this matter 

to seek to have me recused. Intuit cites three instances of what it believes to be statements by me 

that show prejudgment. After having reviewed closely its arguments and the relevant facts and 

law, I have determined that the petition lacks merit. 

Recusal from an adjudicatory proceeding is required where “a disinterested observer” 

would conclude that the adjudicator “has in some measure adjudged the facts as well as the law 

of a particular case in advance.”0F

1 Moreover, agency officials “are presumed objective and 

‘capable of judging a particular controversy fairly on the basis of its own circumstances.’”1F

2 As 

the D.C. Circuit most recently has explained, “[a] party asserting prejudgment must show that 

the agency official has ‘demonstrably made up [her] mind about important and specific factual 

questions and [is] impervious to contrary evidence.’”2F

3

The first two instances that Intuit raises in its petition are statements that I made at or 

around the time the Commission’s complaint was first filed in March 2022. These two 

statements were: (1) my March 2022 retweet of the FTC press release announcing the filing of 

this action; and (2) an April 2022 Q&A session in which I referred to this proceeding in the 

context of discussing the importance of timely action by the agency.3F

4

 Although Rule 4.17(b)(2) 

directs those who believe they have grounds to disqualify a Commissioner to make a motion for 

disqualification “at the earliest practicable time after the participant learns, or could reasonably 

have learned, of the alleged grounds for disqualification,” Respondent did not file a petition 

1 Cinderella Career & Finishing Schools, Inc. v. FTC, 425 F.2d 583, 591 (D.C. Cir. 1970) (quoting Gilligan, Will & 

Co. v. SEC, 267 F.2d 461, 469 (2d Cir. 1959), cert. denied, 361 U.S. 896 (1959)). 2 Nuclear Info. & Res. Serv. v. Nuclear Regul. Comm'n, 509 F.3d 562 (D.C. Cir. 2007) (quoting U.S. v. Morgan, 313 

U.S. 409, 421 (1941)). 

3 Metro. Council of NAACP Branches v. FCC, 46 F.3d 1154, 1165 (D.C. Cir. 1995) (internal quotation marks 

omitted). See also Fast Food Workers Comm. v. NLRB, 31 F.4th 807, 815 n.4 (D.C. Cir. 2022) (noting that Metro. 

Council of NAACP Branches “elaborated” on the Cinderella standard). 4 Specifically, I stated: 

On . . . stopping the law-breaking—I think we need to act in a more timely manner. We need to be 

going into court more quickly; we need to be seeking preliminary injunctions. On the consumer 

protection side, the FTC, a few weeks ago, filed a lawsuit against TurboTax on the consumer 

protection side, alleging that TurboTax had been showing all these ads that are allegedly 

deceptive, and that it was really important to get that relief ahead of Tax Day. I think that type of 

timely intervention and timely filing of lawsuits is incredibly important.
2 

under Rule 4.17(b)(1) until August 2023, 17 months after I made the statements that it alleges 

show bias.4F

5

 

Intuit’s claim that these two comments evince prejudgment has already been rejected by 

Chief Administrative Law Judge Chappell.5F

6

 Issuing an order denying Intuit’s request for 

discovery related to the alleged prejudgment, he wrote, “Factual statements that the FTC has 

brought a lawsuit alleging deception are akin to a factual press release describing pending 

adjudicatory proceedings and allegations, which . . . does not evince prejudgment.”6F

7

 Judge 

Chappell noted that in FTC v. Cinderella Career & Finishing Schools, Inc., the D.C. Circuit held 

that the Commission’s issuance of press releases that called attention to the pending proceedings 

and allegations did not constitute prejudgment or violate respondent’s right to due process of 

law.7F

8 I agree with Judge Chappell’s determination. 

The third instance Intuit cites is my answer to one question in a hearing before the House 

Judiciary Committee on July 13, 2023: 

REPRESENTATIVE PRAMILA 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 LINA M. KHAN: Yeah, 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 pending. But I couldn’t agree more that claims of 

something being free but then ultimately it not being so really hurts people.8F

9

My response to Congresswoman Jayapal’s question accurately noted that “deceptive 

practices ... are laid out in our complaint.” Intuit asserts that my use of “our” shows that I placed 

myself “on the same team as Complaint Counsel.”9F

10 I used that possessive to acknowledge a 

basic fact: the Commissioners—including me—voted to issue the complaint as required by 

Section 5 of the FTC Act, which instructs that the Commission file a complaint whenever it 

“shall have reason to believe” there is a violation of the Act. I then explicitly referenced the 

pending nature of this matter, signaling that the Commission has not issued a final decision and 

that I had not prejudged any issue in any way with respect to this matter. 

5 Rule 4.17(b)(2). See In re N.C. Bd. of Dental Exam’rs, 151 F.T.C. 607, 649 (2011). 5 Rule 4.17(b)(2).

6 Order Denying Respondent’s Motion for Discovery Pursuant to Rule 3.36 at 5-6, In re Intuit Inc., FTC Docket No. 

9408 (Nov. 7, 2022).

7 Id. at 5. 8 Id. at 6 (citing FTC v. Cinderella Career & Finishing Schools, Inc., 404 F.2d 1308, 1314-15 (D.C. Cir. 1968)). 9 Oversight of the Fed. Trade Comm’n: Hearing on 15 U.S.C. §§ 41-58 Before the H. Comm. on the Judiciary, 117th

Cong. (July 13, 2023). 10 Pet. at 5.
3 

I then went on to make a generalized statement that “claims of something being free but 

then ultimately it not being so really hurt people.” Contrary to Intuit’s assertion, that statement 

was not tethered to the merits of the Intuit case, but rather was a generalized assertion that false 

free claims can cause consumer injury. That statement reflected a policy belief, not an 

adjudication of this case. As the Supreme Court noted in FTC v. Cement Inst., “[No authority] 

would require us to hold that it would be a violation of procedural due process for a judge to sit 

in a case after [the judge] had expressed an opinion as to whether certain types of conduct were 

prohibited by law.”10F

11 

Intuit takes issue with Representative Jayapal’s statement that she wanted to discuss “evil 

actors” and that Intuit “trick[ed] and trap[ped]” consumers—and claims that my response 

conveyed agreement with Representative Jayapal’s characterization of Intuit.11F

12 This is belied by 

the text of the full exchange, where I said “Yeah, absolutely,” in response to Representative 

Jayapal’s question, “Can you speak about that?” 

Rather than evincing prejudgment or bias, my response to Representative Jayapal’s 

question, just like my two previous comments, were “[f]actual statements that the FTC has 

brought a lawsuit.”12F

13 Kennecott Copper Corp. v. FTC involved similar prejudgment allegations 

based on an FTC Commissioner having mentioned a pending complaint during an interview.13F

14

There, the Tenth Circuit noted: 

We have examined the cases and in each instance in which the courts considering the 

facts have ruled that the Commissioner had to be disqualified, action was entirely 

justified based on comments showing what appeared to be a prejudice or a viewpoint. No 

such commenting or editorializing is present here. From a reading of the statement in its 

entirety, it is clear that Commissioner Jones was discussing the complaint and was doing 

so in an effort to illustrate a point. Thus, it does not appear that she stepped over the line, 

whereby she showed even a slight commitment.14F

15 

The cases that Intuit cites in support of its petition are factually distinguishable from this 

matter. As Judge Chappell noted, those cases involved instances where the adjudicator “made 

affirmative comments on the merits of the case.”15F

16 

For example, in Cinderella Career and Finishing Schools, Inc. v. FTC, the FTC’s

complaint alleged that respondent’s advertising falsely represented that completion of its courses 

would qualify students to become airline stewardesses.16F

17 The D.C. Circuit held that a speech by 

11 333 U.S. 683, 702-03 (1948). 12 Pet. at 8. 13 Order Denying Respondent’s Motion for Discovery Pursuant to Rule 3.36 at 6, In re Intuit Inc., FTC Docket No. 

9408 (Nov. 7, 2022). 

14 467 F.2d 67 (10th Cir. 1972). 15 Id. at 80. 16 Order Denying Respondent’s Motion for Discovery Pursuant to Rule 3.36 at 5-6, In re Intuit Inc., FTC Docket 

No. 9408 (Nov. 7, 2022). The other cases Intuit cites, Am. Cynamid v. FTC, 363 F.2d 757, 763, 767 (6th Cir. 1966), 

and Berkshire Emp. Ass’n of Berkshire Knitting Mills v. NLRB, 121 F.2d 235, 239 (3d Cir. 1941), did not concern 

public statements made after the filing of an administrative complaint, and, hence, are inapposite. 17 425 F.2d 583 (D.C. Cir. 1970).
4

the then-Chair, condemning false advertising in general and specifically citing as an example a 

representation that one can “becom[e] an airline’s hostess by attending a charm school,” showed 

prejudgment.17F

18 In In re Boston’s Children First, the judge hearing a class certification motion 

gave an interview to a reporter in which she said that the instant case involved class member 

claims “more complex” than a previous case, where “it was absolutely clear every [class 

member] was injured.”18F

19 Given that issues concerning the predominance of a common injury is 

often key in class certifications issues, the First Circuit found that the judge’s comments could be 

construed to relate to the merits of the case at hand and thus warranted recusal.19F

20 Here, by 

contrast, the three statements I made refer to the allegations of the complaint and do not 

comment on the merits of those allegations.

Finally, absent from Intuit’s petition is any reference to Complaint Counsel’s motion for 

summary decision in this matter, which was decided by the Commission in January 2023. In that 

opinion, I joined the Commission in ruling in favor of Intuit on that motion, denying Complaint

Counsel’s motion in its entirety.20F

21 It is unclear how Intuit squares my purported bias against 

Intuit with my vote in favor of Intuit’s motion. 

In sum, none of the comments cited by Intuit are such that a “disinterested observer may 

conclude that [I] ha[ve] in some measure adjudged the facts as well as the law of a particular 

case in advance of hearing it.”21F

22 For all these reasons, I decline to recuse myself from this 

matter.

***

18 Id. at 590-92. 19 244 F.3d 164, 167 (1st Cir. 2001). 20 Id. at 167-68. 21 Opinion and Order Denying Summary Decision, In re Intuit Inc., FTC Docket No. 9408 (Jan. 31, 2023). 22 Cinderella Career & Finishing Schools, Inc. v. FTC, 425 F.2d 583, 591 (D.C. Cir. 1970) (quoting Gilligan, Will 

& Co. v. SEC, 267 F.2d 461, 469 (2d Cir. 1959), cert. denied, 361 U.S. 896 (1959)).