Wilkins v. PayPal (2021-2023)
In February 2023, an arbitrator found that the liquidated damages provision in PayPal's User Agreement was "a penalty and cannot be enforced." Rather than defend the clause on the merits, PayPal maneuvered to have that finding removed from the final order. The clause was never formally struck down, but PayPal chose not to defend it when directly challenged.
What happened
Wilkins used PayPal to collect payments for "The COVID Blog." PayPal limited the account in August 2021 for alleged AUP violations involving COVID-related content and the sale of pine needle products. After the limitation, PayPal continued receiving payments on his behalf and sent 96 notification emails without his consent.
Wilkins initiated the arbitration, claiming breach of contract and violations of California and Nevada anti-spam statutes. He requested USD 136,500 in statutory damages for the 96 unsolicited emails. This case is structurally different from Evans and Nezri: there is no documented deduction of funds Wilkins already held. His claim was about the account limitation and the spam emails, not about a balance PayPal seized. It is worth noting that after the limitation, PayPal continued receiving incoming payments directed to Wilkins and retaining them in the limited account; what ultimately happened to those funds is not specified in the public record.
PayPal responded with a counterclaim, citing its liquidated-damages clause and demanding USD 2,500 per sale for a total of USD 380,000. That counterclaim is what makes the case important: it was a live, concrete attempt to enforce the AUP penalty machinery in arbitration, and it forced the arbitrator to look at the clause directly. The USD 380,000 figure is also worth noting in its own right: it is a common litigation tactic by well-resourced defendants to assert a counterclaim so large that the opposing party, facing potential liability that dwarfs their own claim, is pressured to abandon the case entirely. Here it did not work.
The key moment
On February 23, 2023, the arbitrator granted PayPal summary judgment on Wilkins's own claims. Wilkins's case was about the account limitation (breach of contract) and the 96 unsolicited notification emails (anti-spam statutes). He never argued the AUP clause or raised the penalty issue; those subjects entered the case only through PayPal's own counterclaim. The arbitrator ruled against both his breach of contract and anti-spam claims. In the same order, the arbitrator found that the liquidated damages provision in PayPal's User Agreement was "a penalty and cannot be enforced." He dismissed PayPal's USD 380,000 counterclaim with prejudice.
Why it did not hold
PayPal pointed out it had not moved for summary judgment on its own counterclaim, then voluntarily dismissed the counterclaim with prejudice. The arbitrator issued an amended order on March 31, 2023 that removed the merits language and simply recorded the dismissal. The federal court later treated that amended order as the final award and declined to restore the deleted sentence.
Wilkins lost on his own claims (anti-spam statutory damages and account limitation breach of contract), which had nothing to do with the AUP clause. What survived: PayPal did not collect its USD 380,000 counterclaim. The deeper problem is structural: the penalty issue entered the case through PayPal's own counterclaim, which left PayPal free to make it disappear by withdrawing that demand. A claimant who builds their own case around a direct challenge to the clause, seeking declaratory relief or restitution on that basis, would have been much harder to neutralize.
Bottom line
When forced to confront the liquidated-damages clause directly, the first written reaction from the arbitrator was that it was an unenforceable penalty. That finding did not survive procedurally. But the fact that it appeared at all, and that PayPal chose to retreat rather than defend the clause, is the most significant data point in the public U.S. record on this question.
Evans et al. v. PayPal, Inc. (2022-2023)
N.D. Cal. 5:22-cv-00248 路 Filed January 13, 2022 路 Dismissed to arbitration June 2, 2022 路 Affirmed by the Ninth Circuit September 18, 2023
Three PayPal users lost a combined $241,000+ to AUP deductions documented in PayPal's own written correspondence. The factual record was the strongest of any public PayPal AUP case. None of it was ever used: a class action filing structure guaranteed the case would end at the arbitration question, and it did. The merits of the deductions were never examined.
What happened
Three plaintiffs (Lena Evans, Roni Shemtov, and Shbadan Akylbekov) each had their accounts frozen and, after 180 days, swept with a memo reading "PayPal's damages caused by Acceptable Use Policy violation." Evans lost $26,984. Shemtov lost over $42,000. Akylbekov lost $172,206. PayPal's letter to Akylbekov's wife stated explicitly that the funds were taken "for its liquidated damages arising from those AUP violations pursuant to the User Agreement."
The plaintiffs filed as a class action in federal court. The court dismissed and compelled arbitration on June 2, 2022. The Ninth Circuit affirmed on September 18, 2023. The case never reached the merits.
What went wrong
1. Filing as a class action
This was the structural mistake that made everything else irrelevant. PayPal's User Agreement contains an explicit class-action waiver and mandatory arbitration clause. Filing as a class action in federal court does not get around those provisions; it guarantees that PayPal's first motion will be to compel individual arbitration and dismiss class claims. The Ninth Circuit affirmed that outcome unanimously on September 18, 2023. Not a single judge found a reason to let the case proceed.
2. Overloaded complaint
The complaint contained nine separate claims: conversion, civil RICO, EFTA violations, breach of written contract, breach of fiduciary duty, California UCL, unjust enrichment, declaratory relief, and accounting. Civil RICO treated each fund seizure as a wire fraud predicate act and demanded treble damages, which is one of the most reliable ways to damage credibility with a federal judge in a commercial dispute. All nine claims reduce to a single question: can PayPal keep money it says represents AUP damages without proving any actual loss? Piling on theories obscures that question, creates multiple routes to dismissal on unrelated grounds, and signals that no one identified the core argument worth fighting on.
Bottom line
The factual record in Evans was the strongest of any public PayPal AUP case: real deductions, documented in writing, with PayPal's own letter naming the AUP as the source. None of it was ever used. The legal structure guaranteed the case would end at the arbitration question, and it did. The court and the Ninth Circuit produced nothing on the merits.
What the record does not contain is any finding that PayPal's AUP deductions were valid. It contains a finding that PayPal's arbitration clause and class waiver are enforceable. Those are different things, and the distinction matters: the merits question remains entirely open.
Nezri v. PayPal, Inc. (2022)
C.D. Cal. CV 22-2112 DSF 路 Filed February 10, 2022 路 Motion to compel arbitration granted June 13, 2022
PayPal seized 131,564.25 euros from Gary Nezri after alleged AUP violations. That amount is not an even multiple of $2,500 and cannot be derived from PayPal's per-violation formula, a concrete mathematical impossibility that exposes the arbitrary nature of the deduction. The court did not reject the penalty-clause argument; it redirected it to arbitration, exactly where it belongs. It was never tested there.
What happened
In May 2021, PayPal permanently limited Gary Nezri's account for alleged AUP violations. After a 180-day hold, on November 26, 2021, PayPal withdrew 131,564.25 euros (approximately $150,000 USD) without notice or explanation.
Nezri filed suit in Los Angeles Superior Court in February 2022. PayPal removed to federal court and moved to compel arbitration. The court granted the motion on June 13, 2022. The case was dismissed and sent to arbitration.
What went wrong
1. Fighting to stay out of arbitration instead of fighting on the merits inside it
Nezri's central move was to argue that the arbitration agreement was unconscionable, so the court should refuse to enforce it. Under the Federal Arbitration Act, that bar is extraordinarily high and rarely cleared. The court declined to address the liquidated-damages argument because it found the dispute belonged with the arbitrator. The penalty-clause argument was available and potentially strong. Nezri was making it in the wrong place.
2. Adding RICO claims
The Nezri complaint included civil RICO claims, treating the fund seizure as a wire fraud predicate act. As in Evans, this added nothing useful and signaled to the court that the legal theory had been inflated beyond what the facts could support. Federal courts have rejected RICO as a vehicle for commercial grievances for decades; adding it invites skepticism about the whole filing.
What the court actually said about the penalty clause
The court declined to rule on whether PayPal's liquidated-damages provision was unconscionable, not because the argument was weak, but because standard FAA procedure requires a court that finds a dispute within the scope of an arbitration agreement to send it forward without reaching the merits. The court was not endorsing PayPal's position. It was redirecting the argument to the correct forum. The record contains no finding that PayPal's AUP deductions are valid. It contains only a finding that validity is for an arbitrator to decide.
Bottom line
Nezri is the clearest illustration of the right argument in the wrong forum. The penalty-clause question was squarely presented. The court applied standard FAA procedure and sent it to arbitration, which is where that argument belongs and where it has never yet been fully tested. The case ended not because the argument was wrong, but because it was aimed at the wrong target.
For users outside the United States, the arbitration route under AAA rules does not apply. The equivalent forums are FIDReC in Singapore, the Financial Ombudsman Service in the UK, and national consumer ADR schemes in the EU. They operate under different rules but the same core question applies in all of them: can PayPal retain funds it labels "AUP damages" without proving any actual loss? That question has never been answered on the merits in any public proceeding. See the Singapore guide and UK guide for jurisdiction-specific analysis.
What a stronger case would look like
Three cases. Three different procedural failures. The same core question, whether PayPal can retain funds labeled "AUP damages" without proving any actual loss, has never been answered on the merits in any public proceeding. What the record does show is what does not work. What would work is the inverse:
- One focused argument. Not nine causes of action, not RICO, not class structure. A single direct challenge to the penalty clause as an unenforceable liquidated damages provision, with a demand for restitution of the specific amount taken.
- The correct forum from the start. In the U.S., that means arbitration under AAA consumer rules, not federal court. Outside the U.S., the equivalent is FIDReC (Singapore), the Financial Ombudsman Service (UK), or the applicable consumer ADR scheme in the EU. See the Singapore guide and UK guide.
- A claimant-driven challenge to the clause. Not relying on the other side's counterclaim to surface the issue, as happened in Wilkins. The challenge to the clause has to be part of the claimant's own case so PayPal cannot make it disappear by withdrawing its own demand.
- The mathematical argument front and center. If the deducted amount is not an even multiple of $2,500, PayPal's own formula cannot have produced it. That is not an inference; it is arithmetic. It forces PayPal to explain what it actually did, which it has never been required to do in any public proceeding.