Will the Fifth Circuit vacate or substantially narrow the FTC's TurboTax advertising order by December 2026?

Committee base rate of 40-50% for vacating on the merits is well-grounded in Jarkesy doctrine and sympathetic Fifth Circuit panel. However, the resolution also requires the opinion by Dec 2026 -- federal appellate timelines introduce timing risk of roughly 10-15%. The Jarkesy doctrine is a strong constitutional lever after SCOTUS's June 2024 ruling questioning SEC in-house adjudication, but FTC Section 5 cease-and-desist authority (behavioral restriction, not monetary penalty) is structurally distinct. The 'substantially narrow' resolution criteria broadens the YES space beyond full vacatur, partially offsetting timing risk.

The Jarkesy angle may be more limited than committee assumed. SCOTUS in Jarkesy specifically addressed SEC civil penalty proceedings -- the FTC order here imposes a cease-and-desist behavioral restriction, not a monetary penalty. Courts may draw that distinction. The Fifth Circuit, while generally skeptical of administrative overreach, still upholds FTC actions when the factual record supports deception findings -- and the evidence of deceptive 'free' advertising affecting ~70% of filers was fairly robust. The timing risk is non-trivial if oral arguments haven't been scheduled yet. Discounting committee's 40-50% for these factors.

The committee's 40-50% range after debate resolution is broad. The FTC has long-standing adjudicative authority under Section 5, and while Jarkesy weakened SEC in-house proceedings, the FTC's remedial (not punitive) powers may survive judicial scrutiny. Panel composition matters significantly -- judges who authored expansive Jarkesy readings would favor Intuit. Fifth Circuit median disposition time is ~10 months after briefing completion, making a ruling by late 2026 plausible in most scenarios but not certain. The resolution criteria including 'substantially narrow' is important -- partial relief is more likely than full vacatur.

Committee's 40-50% base rate addresses vacatur probability on the merits. Adding timing risk: roughly 15% chance no opinion is issued by Dec 2026, and conditional probability of vacating given opinion is ~45%. P(YES) = P(opinion issued) * P(vacated|opinion) approximately 0.85 * 0.45 = 0.38. The Jarkesy doctrine favors challengers of agency adjudication but FTC Section 5 is structurally distinct from SEC penalty authority. The 'substantially narrow' resolution criterion partially offsets timing discount by broadening the YES outcome space.

The Jarkesy doctrine is Intuit's strongest card, and the Fifth Circuit originated the Jarkesy case before SCOTUS -- clear ideological sympathy. However, the FTC cease-and-desist order doesn't involve monetary penalties, which may fall outside Jarkesy's specific holding. The factual record of deception was robust. The most likely outcome is partial: court may narrow the remedy without fully vacating. 'Substantially narrow' is explicitly included in resolution criteria, which broadens the YES space materially. Estimating P(full vacatur) ~25%, P(substantially narrow) ~19%, giving a combined YES probability of ~44%.

Resolution criteria explicitly includes 'substantially narrow' as YES, which is a lower bar than full vacatur. Courts often take a middle path -- affirming deception finding but narrowing the remedy. Fifth Circuit could limit restriction to past advertising practices rather than forward-looking behavioral ban. Estimating P(full vacatur) ~23%, P(substantially narrow) ~20%, P(no opinion by Dec 2026) ~12%, P(upheld/remanded) ~45%. The 'substantially narrow' path is the swing factor that pushes this above what a pure vacatur question would yield.

Committee assessed 40-50% for vacating on merits. Jarkesy doctrine helps Intuit's case. Fifth Circuit is sympathetic to administrative law challenges. But FTC Section 5 authority is distinct from SEC penalty authority that Jarkesy addressed. Timing risk adds ~10-15% chance of no ruling by Dec 2026. Resolution includes 'substantially narrow' which broadens YES space and partially offsets timing discount.

Key factors: Jarkesy doctrine favors Intuit but FTC remedial authority may survive constitutional challenge. Fifth Circuit sympathetic but factual record of deception is strong -- FTC found 'free' advertising was misleading for majority of filers. Timing risk of no opinion by Dec 2026 is meaningful. The 'substantially narrow' option is the most likely YES path but still requires court to find procedural or constitutional deficiency.

Committee's 40-50% base rate is well-calibrated for merits. Discounting by ~10% for timing risk of no opinion by year-end. The broad YES definition including 'substantially narrow' partially offsets this discount since courts frequently take middle-ground approaches on remedy even when affirming underlying findings. Net probability lands near the lower bound of committee's range.