Case 3:22-cv-01973-CRB Document 66 Filed 04/22/22 Page 1 of 2
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`IN THE UNITED STATES DISTRICT COURT
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`FOR THE NORTHERN DISTRICT OF CALIFORNIA
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`FEDERAL TRADE COMMISSION,
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`Plaintiff,
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`v.
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`INTUIT INC.,
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`Defendant.
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`Case No. 22-cv-01973-CRB
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`ORDER DENYING MOTION FOR
`EMERGENCY RELIEF
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`Plaintiff Federal Trade Commission (FTC) moves for a Temporary Restraining
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`Order and a Preliminary Injunction under Section 13(b) of the FTC Act, arguing that
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`Defendant Intuit Inc. is deceptively advertising TurboTax Free Edition in violation of
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`Section 5(a). See Emergency Mot. (dkt. 28); Compl. (dkt. 1). The FTC alleges that Intuit
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`advertises that TurboTax Free Edition is “free free free free” and includes only a small and
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`vague disclaimer that it is “for simple returns only” or to “see details at TurboTax.com.”
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`Taxpayers whose returns do not meet Intuit’s definition of “simple” eventually run into a
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`message on the TurboTax website informing them that they must pay to file.
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`Under Section 13(b) of the FTC Act, a district court may grant a preliminary
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`injunction “[u]pon a proper showing that, weighing the equities and considering the
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`Commission’s likelihood of ultimate success, such action would be in the public interest.”
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`15 U.S.C. § 53(b); see FTC v. Affordable Media, 179 F.3d 1228, 1233 (9th Cir. 1999). A
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`defendant engages in deceptive acts or practices under Section 5(a) of the FTC Act if it (1)
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`made a representation, omission, or practice, (2) which was likely to mislead consumers
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`acting reasonably under the circumstances, and (3) which was material. FTC v.
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`Stefanchik, 559 F.3d 924, 928 (9th Cir. 2009); 15 U.S.C. § 45(a).
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`Northern District of California
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`United States District Court
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`Case 3:22-cv-01973-CRB Document 66 Filed 04/22/22 Page 2 of 2
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`The Court denies the FTC’s motion for emergency relief for three reasons. First,
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`Tax Day, which was April 18, 2022, has passed. Most taxpayers have already filed their
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`taxes. Intuit represented in its briefing and at oral argument that its advertising is largely
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`done for this tax season. See Opp. (dkt. 45) at vi. Any prospective harm is therefore
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`attenuated. Second, even before Tax Day, Intuit had removed several of the most
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`plausibly deceptive advertisements—that is, three videos that repeated the word “free” a
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`dozen or more times over 30 seconds before a very brief disclaimer. See Shiller decl. (dkt.
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`7-13, GX 301) ¶¶ 16-31 (describing these ads); Ryan decl. (dkt. 45-3) ¶¶ 16-26 (noting
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`their removal). Third, to the extent other advertisements might violate the FTC Act, the
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`Court notes that the FTC has brought an administrative proceeding against Intuit, with a
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`hearing set for September 14, 2022. See 15 U.S.C. § 45(b); AMG Cap. Mgmt., LLC v.
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`Fed. Trade Comm’n, 141 S. Ct. 1341, 1346 (2021) (detailing the administrative process).
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`An Administrative Law Judge (ALJ) with expertise in these matters will hear (and likely
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`rule) before Intuit resumes its advertising campaign in the lead-up to Tax Day 2023.
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`For the foregoing reasons, the Court DENIES the FTC’s Emergency Motion for a
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`Temporary Restraining Order and a Preliminary Injunction.1 However, if Intuit resumes
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`its full advertising campaign before the ALJ releases her § 45(b) report, or the facts on the
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`ground change significantly, the FTC may return to this Court to request relief.
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`IT IS SO ORDERED.
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`Dated: April 22, 2022
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`CHARLES R. BREYER
`United States District Judge
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`1 The administrative motion for emergency relief on the briefs (dkt. 50) is DENIED AS
`MOOT.
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