Case 1:20-cv-00320 Document 1 Filed 01/20/20 Page 1 of 31 PageID #: 1
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`IN THE UNITED STATES DISTRICT COURT
`FOR THE EASTERN DISTRICT OF NEW YORK
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`
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`CHRISTIAN WILLIAMS, individually and on
`behalf of all others similarly situated,
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`Plaintiff,
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`Civil Action No.:
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`v.
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`INTUIT INC.,
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`CLASS ACTION COMPLAINT
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`JURY TRIAL DEMANDED
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`Defendant.
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`Christian Williams (“Plaintiff”), on behalf of himself and all others similarly situated, on
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`personal knowledge as to the facts concerning himself, on information and belief as to all other
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`matters, and based on the investigation of counsel and public statements, brings this class action
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`against Intuit Inc. (“Intuit”) and alleges as follows:
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`NATURE OF THE ACTION
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`1.
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`This action concerns Intuit’s campaign to intentionally divert and deceive lower
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`income taxpayers who are eligible to receive free tax preparation and filing services under the
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`United States Internal Revenue Service’s (“IRS”) Free File program (“Free File Program”) to its
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`paid TurboTax products.
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`2.
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`TurboTax is the market leading tax preparation software, owned and
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`manufactured by Intuit, that is utilized to file more than 36 million tax returns for taxpayers
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`every year.
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`3.
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`Pursuant to an agreement with the IRS, TurboTax and other tax preparation
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`providers are required to cumulatively offer 70% of U.S. taxpayers based on Adjusted Gross
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`Income (“AGI”) (currently anyone with an AGI of $66,000 or less) the option to file their taxes
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`for free.
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`4.
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`The agreement was specifically designed so that the IRS would not need to create
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`its own free online filing system. According to the government, the goal of the Free File
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`Program was to implement the IRS’s public policy of “extending the benefits of online federal
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`tax preparation and electronic filing to economically disadvantaged and underserved populations
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`at no cost to either the individual user or to the public treasury.”
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`5.
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`Intuit, however, has long been luring customers into paying for a service that it
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`promised the government and consumers it would give away for free.
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`6.
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`With knowledge that a large number of its users (the lowest earning 70% percent
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`of American taxpayers) qualify to file their taxes online for free using TurboTax, Intuit violated
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`its agreement with the IRS and defrauded Plaintiff and members of the Class (defined below) by
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`actively concealing public access to the IRS’s Free File Program and intentionally diverting
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`qualified taxpayers away from its “free filing” program in favor of its paid product offerings.
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`7.
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`Only a small percentage of American taxpayers file their faxes for free. For
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`example, in fiscal year 2018, fewer than 2.5 million of the 100 million eligible taxpayers (less
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`than 2.5%) participated in the Free File Program.
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`8.
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`Intuit employed deceptive and misleading advertising to fraudulently induce
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`lower-income taxpayers into purchasing TurboTax products when they were eligible for free
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`services pursuant to Intuit’s agreement with the IRS. Indeed, Intuit marketed its paid offerings
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`under the product name, “Free Guaranteed”—so that qualified taxpayers believed they were
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`filing their taxes pursuant to the Free File Program, only to be hit with unexpected charges after
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`they already spent hours entering information and preparing to file.
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`9.
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`Because Intuit’s actions and omissions violate well established legal and statutory
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`duties that they owed to Plaintiff and all other similarly situated U.S. consumers, those
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`individuals were forced to suffer the consequences. As a result of this scheme, Intuit generated
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`millions of dollars of ill-gotten gains from persons who can least afford it.
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`10.
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`Plaintiff brings this class action on behalf of himself and all similarly situated
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`consumers for actual and statutory damages, as well as punitive damages and equitable relief to
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`fully redress the vast harm Intuit’s wrongful acts have unleashed on consumers.
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`JURISDICTION AND VENUE
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`11.
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`This Court has jurisdiction over this action pursuant to 28 U.S.C. § 1332(d)
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`because there are more than 100 class members and the aggregate amount in controversy exceeds
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`$5,000,000.00, exclusive of interest, fees, and costs, and at least one Class member is a citizen of
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`a state different from Defendant.
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`12.
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`Venue is proper in this judicial district pursuant to 28 U.S.C. § 1391 because
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`Defendant does business throughout this District and because Plaintiff resides in this District and
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`purchased and used the TurboTax software in this District.
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`13.
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`All conditions precedent necessary for filing this Complaint have been satisfied
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`and/or such conditions have been waived by the conduct of the Defendant.
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`PARTIES
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`14.
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`Plaintiff Christian Williams is a resident of Far Rockaway, New York, and is a
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`citizen of the state of New York who paid to use the TurboTax software to file his tax returns,
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`despite qualifying for the IRS free filing program. The TurboTax software advertised that Mr.
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`Williams would be able to file his federal income tax for free. Further, Intuit did not disclose to
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`Mr. Williams that he was entitled to have his taxes prepared for free and that the edition of
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`TurboTax he used was the paid, rather than the free version. Mr. Williams relied on these
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`misrepresentations and omissions in using TurboTax. However, after he inputted his information
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`into the software, Mr. Williams was charged approximately $223.94 to file his taxes through
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`TurboTax during the calendar years of 2016-2018. Had Intuit not misrepresented the nature of
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`its tax preparation and e-filing services and informed Plaintiff Williams of its intent to assess
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`fees, he would not have navigated to the TurboTax website or input his information. Had Intuit
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`disclosed that Mr. Williams qualified to have his taxes filed for free, he would have prepared his
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`taxes using the truly free TurboTax software or the software of another member of the Free File
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`Alliance rather than the Turbotax paid software.
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`15.
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`Defendant’s misrepresentations and omissions also fraudulently induced Plaintiff
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`Williams to assent to the TurboTax Terms and Conditions, specifically the agreement to
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`arbitrate. Had Mr. Williams known the truth about Defendant’s conduct, he would not have
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`agreed to the arbitration clause, which was an adhesive term which Defendant required Mr.
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`Williams to assent to even access the TurboTax software. Use of the adhesive arbitration clause
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`was part in parcel of Defendant’s fraudulent scheme. Defendant lured consumers to its website
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`with advertisements of “free,” when the actual free product could not even be accessed from the
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`main TurboTax website, forced consumers to assent to an adhesive arbitration clause before
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`inputting their information, and then upsold and charged them at the backend of the transaction,
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`while also affirmatively hiding its free software. This was done to ensure that consumers would
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`not have an adequate remedy and allow Defendant to continue its unlawful practices undeterred.
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`In short, Plaintiff Williams challenges the validity of the arbitration clause itself as procured by
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`fraud. Plaintiff Williams also challenges Intuit’s class action waiver as procured by fraud. Like
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`the arbitration clause, Intuit used the class action waiver to prevent consumers from obtaining
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`meaningful recourse due to the relatively low sums illegally taken from class members when
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`compared to the cost of individual litigation.
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`16.
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`Defendant Intuit Inc. (“Intuit”) is headquartered in Mountain View, California,
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`and is incorporated under the laws of the State of Delaware. Intuit markets, sells, and operates
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`TurboTax, a tax preparation and filing software product and service, and is a member of the Free
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`File Alliance, a nonprofit coalition of twelve tax software companies under an agreement with
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`the IRS to provide free electronic tax services to eligible American taxpayers—the Free File
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`Program.
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`FACTUAL ALLEGATIONS
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`17.
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`Intuit Inc. is a financial software company that develops and sells financial,
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`accounting, and tax preparation software including TurboTax, QuickBooks, and Mint. The
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`company’s most profitable software, TurboTax, is the leading tax preparation software that
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`provides step-by-step guidance for filling out state and federal tax returns and permits users to
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`electronically file their tax returns using a computer or mobile device.
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`18.
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`According to Intuit’s website, “[m]ore federal returns are prepared with TurboTax
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`than any other tax preparation provider.” Intuit had revenues of more than $6.2 billion for the
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`12- month period ending on January 31, 2019.
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`A. Intuit Agrees to Participate in the IRS’s Free File Program
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`19.
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`On October 30, 2002, Intuit and a group of electronic tax filing companies entered
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`into an agreement with the IRS entitled “Free Online Electronic Tax Filing Agreement” (the
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`“Free File Agreement”). The purpose of the Free File Agreement was to provide free electronic
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`tax return preparation and filing for qualified lower-income and economically disadvantaged
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`taxpayers, who were the least likely to be able to afford electronic tax filings for their returns.
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`20.
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`The benefits of the Free File Agreement served objectives of all parties. It served
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`the IRS’s objective of giving low-income taxpayers a way of being able to afford electronic tax
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`filings, as well as shifting the American public toward e-filing as a whole as opposed to paper
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`filing. It also helped Intuit and the other 11 tax preparation providers’ goal of not having to
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`compete with a government run e-file tax service, as the agreement specifically prevents the
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`federal government from entering into the electronic tax preparation software marketplace.
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`21.
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`This commitment from the government protects the viability of the commercial
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`tax preparers’ business model by ensuring they can always charge a significant portion of the
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`U.S. population fees for their services. Indeed, Intuit and its competitors spent millions of
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`dollars lobbying against the IRS creating its own free tax filing system, as well as pushing
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`Congress to codify the Free File Agreement to ensure that a free government-sponsored program
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`would not threaten the industry’s profits.
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`22.
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`Under the Free File Agreement, Intuit agreed to coordinate with the IRS and the
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`other providers to ensure that “their respective marketing of these Free Services … provide[s]
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`uniformity” and “maximize[s] public awareness.” In 2002, the IRS wrote in the Federal
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`Register: the Free File Agreement “provides that taxpayers will not have to go through additional
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`steps or barriers to access the Free Service, beyond those steps required or imposed to access the
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`comparable paid service.” The IRS also instructed that the Free File Program was to offer
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`products “equivalent to those offered for sale on the commercial market,” providing “all of the
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`features and operability of those commercial products.”
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`23.
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`Intuit and the other providers explicitly agreed that “[n]o marketing, soliciting,
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`sales or selling activity, or electronic links to such activity, are permitted in the Free File
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`Program,” except for state tax returns or where the user proves to be ineligible for the Free File
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`product.
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`24.
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`Over the sixteen years that Intuit has participated in the Free File Program, the
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`Free File Agreement was extended eight times in documents known as “Memorandums of
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`Understanding” or (“MOU”). The Eighth MOU is currently in effect and is extended until
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`October 31, 2021.
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`25.
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`Article 2 of both the Seventh and Eighth MOUs states that Free File members
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`“shall … [m]ake tax return preparation and filing easier and reduce the burden on individual
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`taxpayers, particularly the economically disadvantaged and underserved populations,” and shall
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`also “[p]rovide greater service and access to the [Free File] Services to taxpayers.”
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`26.
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`The Eighth MOU added that “Members shall not include a ‘value added’ button
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`(i.e., an icon, link or any functionality that provides a taxpayer with access to a Member’s
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`commercial products or services) on the Member’s Free File Landing Page.” The Seventh MOU
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`expressly provided that “[t]he Member shall have a prominent link permitting taxpayers on a
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`Member’s Paid Service Offering Page to easily and clearly return to the Member Free File
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`Landing Page.”
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`27.
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`The Seventh and Eighth MOUs also prohibit “requesting or collecting
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`bank/financial information (e.g., debit/credit card information) from customers who qualify for a
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`free return where no state tax return products have been purchased.”
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`28.
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`In addition, the Eighth MOU sets forth specific rules to ensure that consumers
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`who do not qualify for a particular member’s Free File product are first redirected to other
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`members’ Free File products, for which they might be eligible, before being offered a member’s
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`paid products.
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`29.
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`The IRS Free-Filing Agreement and MOUs provide that Free File members must
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`collectively offer 70% of U.S. taxpayers – or approximately 100 million people – the option to
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`file their taxes for free. For the 2018 tax season, any taxpayer whose adjusted gross income is
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`$66,000 or less is eligible to use tax preparation software from one of these providers to prepare
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`and file tax forms for free, although each provider sets its own eligibility requirements.
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`30.
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`Because TurboTax is the market leader with 60% of the do-it-yourself tax market
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`and has more volume than its competitors, its eligibility requirements are more stringent. For
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`TurboTax, a consumer qualifies for a free federal tax return if one has: 1) a gross annual income
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`of $34,000 or less; 2) is eligible for the Earned Income Tax Credit; or 3) is on active military
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`duty and has an annual gross income of $66,000 or less.1
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`31. While 70% of U.S. taxpayers are eligible to file for free, less than 2.5% of eligible
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`taxpayers actually utilize the program. The reason for this disparity is due in large part to Intuit’s
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`deceptive practices to prevent lower-income taxpayers from utilizing the program in favor of its
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`paid product offerings.
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`B. Intuit’s Deceptive Practices and Misrepresentations
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`32.
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`Although the Free File Program eliminated the threat that the government would
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`launch its own free tax filing program, it also threatened to reduce Intuit’s profits by reducing the
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`percentage of customers who purchased its paid products.
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`33.
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`Intuit instituted a fraudulent scheme to ensure that eligible taxpayers would pay
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`for TurboTax’s tax services. Intuit set up two programs with similar and misleading names: the
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`TurboTax “Freedom Edition” and TurboTax “Free Edition.”
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`34.
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`TurboTax’s actual free product is referred to as TurboTax “Freedom Edition” –
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`which enables users eligible to complete and e-file their federal tax returns for free in accordance
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`with the Free File Program.
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`35.
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`Yet, TurboTax also offers a different “free” online tax product bearing a similar
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`name: TurboTax “Free Edition.” Despite being heavily marketed, the TurboTax “Free Edition”
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`is not associated with the Free File Program and is a basic software offering that supports only
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`the simplest of tax returns, requiring most users (who are eligible for free filing under the Free
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`File Agreement) to pay to file their returns.
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`1 https://ttlc.intuit.com/community/choosing-a-product/help/what-is-the-turbotax-free-file-
`program/00/25887 (last visited 8/13/19).
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`36.
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`Instead of ensuring access to “taxpayers least able to afford e-filing tax returns at
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`no cost to eligible taxpayers” and making “tax return preparation and filing easier and reduc[ing]
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`the burden on individual taxpayers particularly the economically disadvantaged and underserved
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`populations,” Intuit did the opposite. Intuit diverted and misled the very taxpayers it promised to
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`protect in order to maximize its profits.
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`37.
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`On April 22, 2019, ProPublica, a non-profit organization focused on investigative
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`journalism, released its first in a series of articles about the effect of TurboTax’s deceptive
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`business practices, entitled “Here’s How TurboTax Just Tricked You Into Paying to File Your
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`Taxes.”2
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`38.
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`The authors of the article first searched “irs free file taxes” on Google and the first
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`four hits directed them to websites operated by members of the Free File Alliance:
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`2 Justin Elliot & Lucas Waldron, Here’s How TurboTax Just Tricked you Into Paying to File
`Your Taxes, PROPUBLICA, Apr. 22, 2019, https://www.propublica.org/article/turbotax-just-
`tricked-you-into-paying-to-file-your-taxes.
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`9
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`39.
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`The first link was a paid ad for TurboTax that used the word “free” five times and
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`linked to TurboTax’s homepage where TurboTax represented that customers’ filings would be
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`free guaranteed: “$0 Fed. $0 State. $0 To File. Easily and accurately file your simple tax returns
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`for FREE:”
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`40.
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`The authors then clicked on the link and began the process of filing returns for
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`U.S. taxpayers who made under $34,000 and would qualify for the IRS free filing program and
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`satisfy TurboTax’s eligibility requirements.
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`41.
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`For example, the authors created a profile for a house cleaner who made $29,000.
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`After entering information and answering more than a dozen questions about her finances, the
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`house cleaner was informed that he would have to pay $119.99 to file because his income was
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`derived as an independent contractor:
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`42.
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`In another example, a pharmacy cashier without health insurance was told he
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`would have to pay $59.99 to file because an extra form is required if a person does not have
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`health insurance and “TurboTax Free Edition does not cover this situation.” This is exactly the
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`kind of situation that is covered by TurboTax “Freedom Edition” and the Free File Program—
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`yet, Intuit did not redirect the applicant to the applicable programs:
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`43.
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`In further examining this issue, ProPublica found that, as soon as the authors
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`clicked on the “FREE GUARANTEED” option on the website, Intuit source code on the
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`TurboTax website tagged the person as NONFFA, meaning “Non Free File Alliance.” In other
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`words, Intuit never intended its “FREE GUARANTEED” option to be free. It intended for any
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`taxpayer, even if they were eligible for free tax services under the Free File Agreement, to pay to
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`have their tax return prepared and filed by TurboTax:
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`44.
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`Following publication of the initial article, ProPublica published a follow-up
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`article entitled “Here Are Your Stories of Being Tricked Into Paying by TurboTax. You Often
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`Need the Money.”3 This follow-up article described the stories of dozens of individuals who
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`could not find the TurboTax’s Free File services and, instead, ended up paying to file their return
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`despite their low income and eligibility for the Free File Program.
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`45.
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`Indeed, following publication of the ProPublica article, Intuit admitted that the
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`TurboTax Free File program was not available through its “‘regular’ TurboTax.com website,”
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`and instead had a separate web address4:
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`3 Ariana Tobin, Justin Elliott and Meg Marco, “Here Are Your Stories of Being Tricked Into
`Paying by TurboTax. You Often Need the Money”, ProPublica (April 26, 2019), available at
`https://www.propublica.org/article/here-are-your-stories-of-being-tricked-into-paying-
`byturbotax- you-often-need-the-money
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`4 https://ttlc.intuit.com/community/choosing-a-product/help/what-is-the-turbotax-free-file-
`program/00/25887 (last visited 8/13/19).
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`12
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`46.
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`Consumers were not directed to the Free File website, however, they were
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`directed to the TurboTax website offering Intuit’s paid services. This was demonstrated by
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`ProPublica journalists, who tried to access the Free File program prior to April 15, but were
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`directed to the paid site. Intuit ultimately changed its code, but not until “after April 15, so it was
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`too late for many people who could have filed for free.”5
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`47.
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`In a video statement, Intuit CEO Sasan Goodarzi stated that “[t]o avoid confusion
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`between the IRS Free File program and our own free product, we . . . decided to have the
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`landing page for the IRS product we offer not rank in search results.”6 (emphasis added).
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`Goodarzi described this choice as in “the best interest of taxpayers so they were more fully
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`informed about their options and could choose what they felt was best for them.”7 This was not
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`in the best interest of taxpayers. It was in the best interest of Intuit.
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`48.
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`Intuit’s false advertising, and fraudulent, unfair and deceptive conduct directly
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`contradicts the IRS’s stated objective of providing free online preparation and filing for lower
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`income taxpayers. Intuit purposefully omitted and/or concealed material facts regarding the
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`5 https://www.propublica.org/article/intuit-ceo-in-internal-video-hiding-free-turbotax-was-in-
`best-interest-of-taxpayers (last visited 8/13/19).
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`6 Id. (Video Clip 5).
`7 Id. (Video Clip 6).
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`eligibility of taxpayers to use Freedom Edition for free preparation and filing of simple to
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`complicated taxes.
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`49.
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`By falsely convincing eligible taxpayers that they were unable to prepare and file
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`their taxes for free, despite the existence of Freedom Edition, Intuit charged Plaintiff and
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`members of the Class for paid TurboTax products when it should have provided Freedom
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`Edition for free pursuant to the Free File Program.
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`50.
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`Intuit’s conduct has earned the scorn of the government. On May 6, 2019, Los
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`Angeles City Attorney Mike Feuer initiated a lawsuit against Inuit, accusing them of “actively
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`undermining public access to the IRS’ ‘Free File’ Program.”8
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`51.
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`On December 31, 2019, the IRS announced it was taking action with regard to the
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`Free File program. Previously, Intuit’s fraudulent conduct prevented the IRS from offering its
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`own free filing service, which would be a direct competitor to TurboTax. Now, the IRS has
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`dropped the prohibition on creating its own filing system.9 The IRS will also bar companies
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`such as Intuit from “engaging in any practice that would exclude their Free File offerings from
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`an organic internet search.”10 This will allow consumers to find the Free File program more
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`easily on internet search engines, rather than having the program hidden by Intuit, as described
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`above. However, these reforms will not go into effect until the 2020 tax filing season, and
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`millions of consumers, including Plaintiff, have been harmed in the two decades since these
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`deceptive practices began.
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`8 Michael Hiltzik, Column: TurboTax and H&R Block are Sued for Allegedly Keeping
`Americans from Filing Taxes for Free, L.A. TIMES, May 6, 2019,
`https://www.latimes.com/business/hiltzik/la-fi-hiltzik-turbotax-lawsuit-20190506-story.html.
`9 Justin Elliot & Paul Kiel, IRS Reforms Free File Program, Drops Agreement Not to Compete
`with TurboTax, PROPUBLICA, Dec. 31, 2019, https://www.propublica.org/article/irs-reforms-free-
`file-program-drops-agreement-not-to-compete-with-turbotax.
`10 Id.
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`52.
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`As a direct and proximate result of Intuit’s actions and omissions, Plaintiff and
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`similarly situated consumers have been harmed, injured, and damaged. Not only has Intuit
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`misled consumers, but Intuit has relied on fraudulent compliance with the Free File Program to
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`keep the IRS from offering its own free-filing services, in order to increase its revenues at the
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`expense of Plaintiff and members of the Class.
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`53.
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`Intuit’s deceptive conduct has ensured that the Free File services intended by the
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`Free File Agreement are not available from any reasonably-accessible source.
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`C. The Arbitration Agreement Is Used To Effect The Fraudulent Scheme
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`54.
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`The above facts make clear that Defendant’s intention was to ensure that
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`consumers were diverted to the paid TurboTax products. Defendant then used an arbitration
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`clause embedded in its terms and conditions to effect the fraudulent scheme to deny Plaintiff and
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`Class members the benefit of meaningful redress through class litigation.
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`55.
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`Before a user can use the TurboTax Online tax preparation and filing services, the
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`user is required to login to an existing account (if a returning user) or go through a sign-up and
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`registration process (if a new user). In either process, the user must affirmatively agree to
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`Intuit’s license agreement in order to proceed.
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`56.
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`If the person is an existing user, he or she is presented with a sign-in page in
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`which to enter his or her username and password. The sign-in page notifies the user immediately
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`below the blue “Sign In” button, that “By clicking Sign In, you agree to the Turbo Terms of Use,
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`TurboTax Terms of Use and have read and acknowledge our Privacy Statement.” (Italics and
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`blue font type in original).
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`57.
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`The term “TurboTax Terms of Use” on this page (as reflected by its blue font
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`type) is hyperlinked text that the user could click on to go to a copy of the “Intuit Terms of
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`Service for TurboTax Online Tax Preparation Services – Tax Year 2018” (the “TERMS”). The
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`TERMS contain the arbitration clause.
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`58.
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`The process is effectively the same for new users. If the person is a new user,
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`then on the sign-in page the user is presented with an option to “Create an account,” which is in
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`blue, hyperlinked text. If the user clicks on “Create an account,” he or she is presented with an
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`account creation page on which he or she can create a TurboTax account by providing an email
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`address and by selecting a user ID, providing a phone number (optional but recommended) and
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`selecting a password.
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`59.
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`This “Create your account” page notifies the user immediately below the blue
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`“Create Account” button, that “By clicking Create Account, you agree to the Turbo Terms of
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`Use, TurboTax Terms of Use and have read and acknowledge our Privacy Statement.” (Italics
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`and blue font type in original.). The term “TurboTax Terms of Use” on this “Create your
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`account” page is hyperlinked text that the user could click on to go to a copy of the TERMS.
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`The TERMS contain the arbitration clause.
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`60.
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`All of this must be completed at the initial step before the user is able to proceed
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`with using the software.
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`Case 1:20-cv-00320 Document 1 Filed 01/20/20 Page 18 of 31 PageID #: 18
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`61.
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`In short, by the time the user knows they’ve been duped, its too late. The user
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`was already forced to waive his or her right to a day in court, or to even the playing field against
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`Defendant by banding together as consumers victimized by Defendant’s conduct.
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`62.
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`The arbitration agreement in this case is used by Defendant as a sword to effect a
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`fraudulent scheme, described at length above, to unlawfully funnel consumers into the paid
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`offerings using deceptive sales tactics and requiring users to sign a take-it-or-leave it form
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`agreement to file their taxes. This is combined with active suppression of the Free File
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`compliant software, such that consumers will not know that they actually qualify to file their
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`taxes for free.
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`63.
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`Plaintiff Williams, on behalf of himself and the Class, challenges Defendant’s
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`arbitration clause itself as procured by fraud and as part of Defendant’s fraudulent scheme.
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`64.
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`Plaintiff Williams, on behalf of himself and the putative class, seeks to rescind the
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`arbitration agreement due to fraudulent inducement.
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`65.
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`In addition to the arbitration clause itself, Plaintiff Williams, on behalf of himself
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`and the Class, seeks to rescind the remainder of the provisions in the TERMS, including the
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`purported class action waiver due to fraudulent inducement. Like the arbitration clause, the class
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`action waiver was a means to prevent consumers from obtaining meaningful redress due to the
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`asymmetry of litigation cost compared to the relatively low sums Defendant illegally took from
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`consumers.
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`CLASS ALLEGATIONS
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`66.
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`Plaintiff brings his claims on behalf of a proposed class (the “Class”), defined as
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`follows:
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`All Free File Program-eligible persons in the United States who
`paid to use a TurboTax product to file an online tax return for the
`2002 through 2018 tax filing years.
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`Case 1:20-cv-00320 Document 1 Filed 01/20/20 Page 19 of 31 PageID #: 19
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`67.
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`Plaintiff also seeks to represent a subclass defined as all Free File Program-
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`eligible persons who are New York residents who paid to use a TurboTax product to file an
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`online tax return for the 2002 through 2018 tax filing years.
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`68.
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`Excluded from the Class is: Defendant; any of its corporate affiliates; any of its
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`directors, officers, or employees; any persons who timely elects to be excluded from the Class;
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`any government entities; and any judge to whom this case is assigned and their immediate family
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`and court staff.
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`69.
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`Plaintiff does not know the exact number of members in the Class, but believes
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`that there are at least tens of thousands of members. The members of the Class are so numerous
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`that joinder of all members of the Class would be impracticable. The names and addresses of
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`members of the Class are identifiable through documents maintained by Defendant.
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`70.
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`There is a well-defined community of interest in the questions of law and fact
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`involved in this case. Questions of law and fact common to the members of the Class the
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`predominate over questions that may affect individual Class members include:
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`(a) Whether Intuit knowingly failed to comply with, and/or breached its
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`obligations under the Free File Program;
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`(b) Whether Intuit engaged in fraud or fraudulent concealment;
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`(c) Whether Intuit’s website and/or advertising of the Free Edition is false and
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`misleading to reasonable consumers;
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`(d) Whether Intuit’s online representations that its TurboTax service was
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`guaranteed to be free were designed to, and did, induce Plaintiff and members
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`of the Class to use TurboTax, and spend time gathering and inputting factual
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`details to submit their tax returns, before being informed that Intuit’s services
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`were not actually free;
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`19
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`Case 1:20-cv-00320 Document 1 Filed 01/20/20 Page 20 of 31 PageID #: 20
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`(e) Whether Intuit’s online representations that its TurboTax service was
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`guaranteed to be free would be important to a reasonable consumer’s decision
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`as to whether to use TurboTax to prepare and file a tax return;
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`(f) Whether Intuit engaged in other improper conduct in furtherance of its
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`misrepresentations, including manipulation of software source code and
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`online ad placements to impede low-income taxpayers’ ability to discover and
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`navigate to its free filing website;
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`(g) Whether Intuit violated N.Y. GBL § 349;
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`(h) Whether Intuit violated N.Y. GBL § 350;
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`(i) Whether Intuit was unjustly enriche