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On March 20, 2026, the U.S. Court of Appeals for the Fifth Circuit held that deceptive advertising actions brought by the Federal Trade Commission (FTC) in an administrative proceeding are unconstitutional.[1] In Intuit, Inc. v. FTC (No. 24-60040), the Fifth Circuit determined that when the FTC prosecutes deceptive advertising claims pursuant to Section 5 of the FTC Act, it can only bring those claims in an Article III court because such claims implicate “private,” not “public,” rights. This decision follows AMG Capital Management LLC v. FTC (No. 19-508), where the U.S. Supreme Court in 2021 held that the FTC’s power to obtain “permanent injunctions” under Section 13(b) of the FTC Act did not allow it to seek equitable monetary relief, like restitution or disgorgement.[2] The Intuit decision, taken together with its predecessor AMG Capital Management LLC, will have profoundly affect the FTC’s enforcement authority.

Background. Intuit, Inc. is a financial company known for its popular online and desktop tax-preparation products, including “TurboTax.” Intuit offered and advertised a “Free Edition” of TurboTax, which can be used by consumers for simple tax returns. Intuit widely advertised the Free Edition, particularly highlighting that consumers may use TurboTax Free Edition at no cost. These advertisements contained the caveat that if the consumer’s tax return needs exceeded that of a simple tax return, they would need to pay for the premium TurboTax product.[3] In 2022, the FTC filed suit in federal court and sought a preliminary injunction against Intuit, alleging that their advertisements of TurboTax Free Edition “deceived consumers into believing that all TurboTax products are free.”[4] Following the denial of that preliminary injunction, the FTC pursued a cease-and-desist order through an internal adjudication before an administrative law judge (“ALJ”). The ALJ granted the cease-and-desist order, concluding that the advertisements for TurboTax Free Edition were likely to mislead a significant amount of consumers.[5] The ALJ broadly prohibited Intuit from advertising any goods or services as free for the next twenty years, unless specific requirements were satisfied.[6] The cease-and-desist ruling was affirmed on appeal by three Commissioners of the FTC. Intuit then petitioned to the Fifth Circuit for review.[7]

The Fifth Circuit Decision. Judge Edith Jones, writing for the Fifth Circuit, determined that the threshold issue was whether the FTC “unlawfully adjudicated private rights before an ALJ rather than in an Article III court.” (internal quotation marks omitted).[8] The Fifth Circuit applied precedent set out by the U.S. Supreme Court in SEC v. Jarkesy, 603 U.S. 109 (2024), to conclude that the FTC’s deceptive advertising claim against Intuit implicated “private rights,” and thus, required Article III adjudication.[9] The Fifth Circuit decided that deceptive advertising claims are “traditional actions at law and equity” similar to common law claims of fraud and deceit for several reasons:

• The Section 5 deceptive advertising claims “share a common core” with common law claims of fraud and deceit.[10] The Fifth Circuit noted that both Section 5 deceptive advertising claims and common law fraud and deceit claims require the same showing of “a material representation that was false.”[11]
• There are “striking similarities” in the verbiage used in the FTC’s administrative complaint and opinion granting the cease-and-desist order, and the “classic terms of art” used in common law fraud and deceit claims.[12] The Fifth Circuit reasoned that this overlap of language demonstrates the similarities between the FTC Section 5 cease-and-desist orders and traditional equitable remedies, such as an injunction.
• The FTC Act’s “unfair methods of competition standard was derived from common law,” and therefore, operated on the same legal principles as common law fraud and deceit.[13] The Fifth Circuit noted that the U.S. Supreme Court’s FTC Act jurisprudence in the 1920s established that “deceptive advertising was a traditional wrong that the Commission could address,” one that, in the words of Supreme Court Justice Brandeis, has “long been a part of the law of unfair competition.”[14] The Fifth Circuit highlighted that the Supreme Court’s expansion of its FTC Act jurisprudence came after its initial acknowledgment that deceptive advertising claims were derived from traditional common law claims.
• Section 5 claims are actionable at common law.[15] The Fifth Circuit ruled that while Section 5 “may well constitute a more effective tool than common law for combatting deceptive advertising,” notably because it has a more lenient standard of proof and dispenses the requirement of the FTC to prove harm, that alone “does not allow Congress to relegate claims of common law pedigree to adjudication by non-Article III bureaucrats.”[16]

The Fifth Circuit then addressed other arguments, including dismissing what it deemed as a “circular” argument—that the deceptive advertising claim invokes public rights because “Section 5 permits the government to pursue equitable remedies on the public’s behalf.”[17] The Fifth Circuit was also unpersuaded by the FTC’s argument that limiting its adjudicative authority would “largely dismantle the FTC Act,” because this “practical consideration alone cannot justify extending the scope of the public rights exception.”[18]

Having concluded that the deceptive advertisement claim implicated private rights, the Fifth Circuit vacated the FTC’s cease-and-desist order against Intuit.

Implications for the FTC. While the Fifth Circuit’s decision limits FTC enforcement authority with respect to adjudicating deceptive advertising claims, the Fifth Circuit carefully noted that its holding does “not decide the same question for any other unfair methods of competition or other unfair or deceptive acts or practices.”[19] Judge James Ho, who joined the majority, wrote separately to underscore that the entire structure of the FTC, which combines executive, legislative, and judicial functions, is constitutionally suspect.[20] Judge Ho invoked the Constitution’s separation of powers credo and noted that while the Constitution “separates power to preserve liberty,” the FTC Act of 1914 “combines power to undermine liberty.”[21] Judge Ho also noted that the “public rights exception,” which permits the Executive Branch to “resolve certain matters free from judicial involvement,” has no basis in the Constitution, and thus should only be invoked where it is “supported by a serious and unbroken historical pedigree,” if it is to be invoked at all.[22]

Intuit follows a recent trend in FTC Act jurisprudence of scrutinizing the basis of, and undercutting, the FTC’s enforcement authority. The U.S. Supreme Court will issue its decision in Trump v. Slaughter later this term, and it is expected to rule that the President of the United States may fire FTC Commissioners without cause, thereby overruling the 1935 Supreme Court opinion in Humphrey’s Executor v. U.S. (a decision that Judge Ho explains should be overruled as it violates Article II).[23] If the Supreme Court rules as expected in Trump v. Slaughter, and rules consistently with the other FTC Act decisions, including Intuit and AMC Capital Management, then the FTC will be fundamentally reshaped.

Wiggin and Dana routinely advises clients in connection with the full range of antitrust, consumer protection, and unfair trade practices matters, including antitrust litigation, compliance counseling, merger investigations, and representations before the FTC, DOJ, and offices of state attorneys general.

[1] Intuit, Inc. v. FTC, No. 24-60040 (5th Cir. Mar. 20, 2026). https://www.ca5.uscourts.gov/opinions/pub/24/24-60040-CV0.pdf.

[2] Supreme Court Update: Jones v. Mississippi (No. 18-1259), AMG Capital Management LLC v. FTC (No. 19-508), Carr v. Saul (No. 19-1442) – Wiggin and Dana LLP.

[3] Intuit, Inc., at 4.

[4] Id.

[5] Id.; see also Intuit Inc., Dkt. No. 9408 (2023) (Federal Trade Commission) (initial decision), https://www.ftc.gov/system/files/ftc_gov/pdf/intuit_initial_decision_public_redacted_1.pdf.

[6] Id.

[7] Id.

[8] Id.

[9] Id. at 5–6.

[10] Id. at 7–8.

[11] Id. at 8.

[12] Id. at 8.

[13] Id. at 8–9.

[14] Id. at 9.

[15] Id. at 9–10.

[16] Id.

[17] Id. at 10.

[18] Id. at 12–13. Interestingly, the FTC did not argue that the FTC Act, and the deceptive advertising claims that arise from it, are distinct, and therefore not derived from the common law claims of fraud and deceit. The Fifth Circuit likely would have rejected this argument as well, though a similar argument was previously accepted by the Connecticut Supreme Court in Associated Investment Co. Ltd. Partnership v. Williams Associates IV, holding that there was no constitutional right to a jury trial in that matter because the cause of action was, inter alia, not traceable to a common law cause of action extant at the time of the adoption of the Connecticut Constitution of 1818. 230 Conn. 148, 153–62 (1994) (noting that CUTPA, and the FTC Act which CUTPA was modeled after, established “an action more flexible and a remedy more complete than did the common law,” and because it “remov[ed]…common law obstacles to recovery . . . the private cause of action created by CUTPA reaches conduct well beyond that proscribed by any common law analogue.”) (citing Hinchliffe v. American Motors Corp., 184 Conn. 607, 617, 440 A.2d 810 (1981) and Web Press Services Corp. v. New London Motors, Inc. 203 Conn. 342, 362–63, 525 A.2d 57 (1987) (“[C]ommon law claims for fraud, deceit and misrepresentation require proof that defendant knew of falsity of representation, whereas CUTPA claimant need not prove defendant’s knowledge that representation was false.”)).

[19] Id. at 13 (internal quotation marks omitted).

[20] Intuit, Inc., at 13–15.

[21] Id. at 13.

[22] Id. at 14–15.

[23] Id. at 14 (“The President should possess the constitutional authority under Article II to remove his subordinates from office….”).