The Federal Trade Commission (“FTC”) alleged that Defendant Doxo’s website and ads were confusing to some consumers and that Doxo committed certain technical disclosure violations.
Federal Trade Commission filed motions to exclude Plaintiff’s expert witnesses, David True, Ann Schlosser and Brian Sowers.
Payments Expert Witness
David True is a consumer payments expert with over 35 years of experience working with card issuers, networks, merchants, processors, and financial technology firms. Over the course of his career, he has gained experience in payments strategy, marketing, new product development, operations, and finance.
Marketing Expert Witness
Ann Schlosser, Ph.D., is a marketing professor whose research focuses on consumer behavior, Internet and digital marketing, and communication in technology-mediated environments.
Schlosser received her Ph.D. and M.A. in social psychology with a double minor in advertising and quantitative psychology.
Schlosser has over thirty publications in academic journals, conference proceedings, and book chapters.
Market Research Expert Witness
Brian Sowers is a market research consultant. Over the course of his career, he has personally designed and conducted thousands of market research surveys across a broad range of modalities and a broad range of populations.
Discussion by the Court
David True
David True, a consumer payments expert, summarized his opinions as follows: (1) Defendant Doxo, Inc. (“Doxo”) allows consumers to choose from a wide variety of funding mechanisms for bill pay; (2) Doxo remits payments to billers either through direct deposit, the Mastercard Remote Payment and Presentment Service (“RPPS”), or check; (3) Doxo’s remittance methods are commonly used, including by bank bill pay services; (4) convenience fees are ubiquitous in bill pay and are routinely charged by billers and/or their preferred payment channels; (5) Doxo’s practices of disputing non-fraudulent chargebacks is normal and an expected part of being a merchant that accepts card payments; and (6) although a small number of billers have posted warnings about Doxo, the substance of those warnings is often questionable, potentially self-interested, or the product of misunderstanding.
(i) True’s Qualifications
The FTC did not appear to challenge True’s qualifications, noting only that, although True “has industry experience advising businesses about payments,” he has limited experience and “identifies no experience or expertise related to consumers’ perceptions of advertisements or businesses’ compliance with consumer protection law.”
The Court found that True is qualified, based on his knowledge and experience, to give relevant and reliable expert testimony. The FTC cited no cases in support of its proposal to define True’s prior experience in the payments industry so narrowly. True possesses “at least the minimal foundation of knowledge, skill, and experience required in order to give ‘expert’ testimony” on the consumer payments industry.
Whether True has the “knowledge and experience” to offer relevant reliable expert testimony is not, however, the end of the inquiry; the Court must further evaluate whether he is able to do so in this case.
(ii) The relevance of True’s proffered testimony
The FTC argued that True’s report consisted of irrelevant matters that have no bearing on whether Defendants violated the FTC Act, Gramm-Leach-Bliley Act, and the Restore Online Shoppers’ Confidence Act.
True’s testimony in his report concerning industry standards about the U.S. consumer bill pay market (Section VII) and bill pay methods (Section VIII) sets the foundation for his testimony. This testimony is relevant because it supported Defendants’ theory that Doxo’s business practices are normal and expected. True then applied these principles to his interpretation of Doxo’s operations (Section IX), discussing payment funding and remittance, payment validation processes, and biller directory quality assurance practices.
True’s recitation of Doxo’s business model and business case for a centralized bill pay platform are necessary to lay the factual foundation for this analysis and is therefore relevant. True’s explanation of Mastercard’s RPPS (Section X) is relevant to the FTC’s theories that Doxo collects money from consumers without paying the biller or pays the biller late, thereby causing consumers to incur late fees or other negative outcomes. Finally, True opined on the fees and costs associated with bill payments (Section XI), Doxo’s chargeback procedures and rates (Section XII), and biller warnings about Doxo (Section XIII). The FTC relied on Doxo’s practices in this area and external evidence to support its claims, thereby making these portions of True’s testimony relevant.
(iii) The reliability of True’s testimony
The FTC argued that True’s conclusions about Doxo’s practices (Sections IX—XII of True’s report) are improper as expert testimony because True identified no methodology or specialized knowledge or experience that explained how he reached them.
True opined that “Doxo has robust processes for minimizing chargebacks,” Doxo’s chargeback rate is “well below industry thresholds for fines or monitoring programs,” and Doxo’s “win rate of approximately 80% on bill payments and about 50% on its subscription (doxoPLUS) products” compares to “an industry average success rate of roughly 45%.” In discussing Doxo’s “multi-layered payment validation framework,” True stated that the validation criteria “are based on a combination of industry standards (e.g., financial institution formatting norms) and direct input from billers.”
The Court deems an expert’s testimony reliable where he identifies applicable industry standards in his report and contrasts them with an atypical case, like this one.
The FTC also argued that True’s conclusions about biller warnings concerning Doxo (Section XIII of True’s report) are not reliable because he offered a definitive conclusion that a “small minority” and “tiny portion” of billers have issued such warnings, despite not asking Doxo whether a spreadsheet upon which he based this conclusion was comprehensive. The FTC did not, however, point the Court to a more comprehensive list of billers who have issued warnings that would support a conclusion that True’s testimony on biller warnings is unreliable because he “failed to consider the relevant underlying facts necessary to support his opinions and conclusions.”
Dr. Ann Schlosser
In her report, Schlosser reached the following conclusions: (1) reasonable consumers would correctly interpret search engine results for Doxo and are not likely to be misled; (2) reasonable consumers would correctly interpret the website and accompanying disclosures to understand that Doxo is not the biller and does not have a formal affiliation with their biller; (3) reasonable consumers would understand that Doxo charges a fee for certain transactions; (4) the option to pay for free by using a linked bank account is stated clearly and repeatedly throughout the payment process; (5) reasonable consumers would understand that doxoPLUS is a subscription service; and (6) isolated consumer complaints do not alter the foregoing conclusions.
(i) The Relevance of Schlosser’s Proffered Testimony
The FTC also did not appear to challenge the relevance of Schlosser’s testimony, but instead questioned its helpfulness.
The topics about which Schlosser opined included the following: (1) how consumers navigate a purchase decision-making process, (2) application of the decision-making process to Doxo customers, and (3) whether a reasonable consumer would be confused or misled as to fees, affiliation, or the nature of Doxo’s bill pay or subscription services. All of these topics are clearly relevant to the issues in this case.
(ii) The Reliability of Schlosser’s testimony
Schlosser’s testimony that consumers are not deceived by Doxo’s advertisements and website is unreliable
The FTC contended that Schlosser’s testimony that consumers are not deceived by Doxo’s advertisements and website is unreliable.
Schlosser analyzes a consumer’s experience using Doxo’s service by walking through the process from encountering Doxo’s advertisements on Google through each step of Doxo’s bill payflow. Rather than simply regurgitating what she can read on each webpage, Schlosser pauses to explain why certain aspects of these webpages are not misleading or confusing, weaving in principles within her expertise and data not present on the face of any webpage. Although the FTC may disagree with Schlosser’s opinions or critique how she reached them, such arguments bear not on the admissibility of Schlosser’s testimony, but instead their weight, which can be appropriately addressed during cross-examination.
Schlosser’s methodology is unreliable because she failed to consider the actual facts at issue
The FTC also argued that Schlosser’s methodology is unreliable because “she failed to consider the actual facts at issue” and “due to her failure to account for the overwhelming evidence contrary to her opinion.” Almost invariably, Schlosser testified that she would need more information to determine whether any of the documents shown to her or information shared with her would be relevant to her opinions in this case.
Schlosser’s opinions are unhelpful
The FTC challenged three other broad categories of Schlosser’s opinions based on their alleged unreliability and unhelpfulness: (1) Doxo has “satisfied consumers and a loyal following,” (2) certain payment data indicates that consumers were not deceived; and (3) consumers do not care about the affiliation between Doxo and their billers.
The Court rejected all these challenges, because (1) Schlosser’s comment on Doxo consumer satisfaction is relevant to bridge the gap between her application of the consumer decision-making process and external data about Doxo’s consumers; (2) the FTC may cross-examine her about the strength of these opinions, which do not make them inadmissible on their face; and (3) Schlosser stated that “paying on time, without extra fees, is important to consumers,” but explained that “consumers are unlikely to know who is handling the payment or make decisions on whether to buy or not based on who is handling the payment.”
(iv) Ultimate Issue Testimony
The FTC argued that Schlosser’s opinion on deception is an impermissible legal conclusion. Schlosser concluded that “the evidence does not support the conclusion that Doxo’s practices are misleading, confusing, or deceiving a significant number of consumers acting reasonably.” She used the term “deception” or “deceived” a handful of times in the rest of her report.
The Court concluded that Schlosser has not offered an opinion on an ultimate issue of law.
Brian Sowers
(i) Relevance and reliability of Sowers’ opinions on Doxo’s internal surveys
The FTC argued that Sowers relies exclusively on guidance regarding the design of surveys conducted specifically for litigation and failed to explain why or how that literature applied to the Doxo internal surveys that Sowers analyzed.
Sowers testified that he reviewed about nineteen Doxo surveys and agreed that companies’ internal surveys are often not conducted according to the “Shari Diamond Chapter,” a reference guide on survey research, if they are never intended for use in litigation.
According to that reference guide, “the content and execution of a survey must be scrutinized whether or not the survey was designed to provide relevant data on the issue before the court.”
The FTC offered no authority to suggest, however, that an analysis of proper survey design and implementation varies based on the purpose for which the surveys are used. To the extent the FTC disagrees with Sowers’s methodology, the FTC is free to address such concerns during cross-examination.
The FTC also contended that Sowers’ conclusions are “pure ipse dixit.” Sowers identified from treatises and applied ten guidelines for reliable survey design throughout his analysis.
The Court concluded that Sowers’ testimony on Doxo’s internal surveys was relevant and reliable.
(ii) Relevance of the Awareness Survey
The FTC argued that Sowers’ Awareness Survey should be excluded under Rules 702 and 403 as unhelpful to the trier of fact for failing to advance any material issue in the case.
Sowers stated that the Awareness Survey results showed 13.3% of respondents indicated that they are aware they can pay a bill online through a third-party website not authorized by the biller.
The Awareness Survey did not survey Doxo consumers. With the relevant period of liability being February 2021 through October 2024, a survey conducted years later of general consumers’ preexisting beliefs on paying bills through a third-party is not relevant.
Defendants have made no showing, through Sowers or otherwise, about how results may differ (or not) over time and how the survey Sowers conducted could bear on perceived consumer confusion two to five years ago.
Held
- The Court denied the motions to exclude expert witnesses David True and Ann Schlosser brought by the Federal Trade Commission.
- The Court denied in part and granted in part the FTC’s motion to exclude expert witness Brian Sowers.
Key Takeaway
Trial judges are tasked with ensuring that an expert’s testimony rests on a reliable foundation and is relevant to the task at hand. Generally, expert opinion testimony is relevant if the knowledge underlying it has a valid connection to the pertinent inquiry and reliable if the knowledge underlying it has a reliable basis in the knowledge and experience of the relevant discipline. Expert testimony is inadmissible if it concerns factual issues within the knowledge and experience of ordinary lay people because it would not assist the trier of fact in analyzing the evidence. Nevertheless, expert testimony need only provide appreciable help to the jury to be admissible.
Case Details:
| Case Caption: | Federal Trade Commission V. Doxo, Inc. |
| Docket Number: | 2:24cv569 |
| Court Name: | United States District Court, Washington Western |
| Order Date: | April 08, 2026 |
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