Letter to PayPal by suepaypal

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									October xx, 2009 VIA USPS CERTIFIED MAIL Receipt No.: Civil Court of the City of New York Small Claims Part Clerk 111 Centre Street, Room 353 New York, New York 10013 Re: John Doe v. PayPal, Inc. Case No.: xxxxxxxxxxx

Dear Sir or Madam: I write in response to PayPal‟s motion of October 13, 2009 requesting that I the Plaintiff to the above referenced case “dismiss [the] claim in YOUR STATE and pursue it either through arbitration or in an appropriate court in Santa Clara County or Omaha, Nebraska.” PayPal Lawyer on behalf of PayPal cites Comb v. PayPal,. Inc., 218 F. Supp. 2d 1165, 1171-72 (N.D. Cal. 2002) claiming that Judge Fogel‟s decision does not pertain to the case at bar on the merit that it addresses only the prohibition against class action suits in PayPal‟s User Agreement, the clause pertaining to which has since been modified (though not eliminated) to allow for class action suits, and therefore bears no relevance upon individual claims. However, this modification to the PayPal User Agreement addresses only one of five significant findings in Comb. In its verdict rendered August 30, 2002, the Federal Court held that “the User Agreement and the arbitration clause therein are unconscionable because they: (1) permit PayPal to issue binding amendments to the User Agreement at any time without notice to users; (2) obligate users to arbitrate their disputes pursuant to the commercial rules of the AAA, which is cost prohibitive in light of the average size of a PayPal transaction; (3) obligate users who reside nationwide to arbitrate in Santa Clara county, California, where PayPal is located; (4) permit PayPal to freeze and maintain possession of the funds in customer accounts until any dispute is resolved; and (5) require users to pursue their claims individually, and not via a class action. Taken together, the Court held these provisions made the User Agreement unconscionable, and appear to represent an attempt by PayPal „to insulate itself contractually from any meaningful challenge to its alleged practices.‟”1 Defendant goes on to cite as cause for its motion Section 14 of the PayPal User Agreement, the Disputes clause, by which it claims I am bound to “resolve this matter through binding arbitration or by filing a lawsuit in a court of competent jurisdiction in Santa Clara County, California or Omaha, Nebraska.” As the Court‟s decision applies here, requiring me to pursue arbitration would be cost prohibitive in light of the size of the transaction in dispute, as would requiring me to travel from YOUR CITY, where my residence and business are based, to California or Nebraska. Judge Fogel found that “limiting venue to PayPal‟s backyard appears to be yet one more means by which the arbitration clause serves to shield PayPal from liability
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http://www.internetlibrary.com/cases/lib_case302.cfm

Re: YOUR NAME v. PayPal, Inc. October xx, 2009

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instead of providing a neutral forum in which to arbitrate disputes.” While the referenced clause has been modified to allow for class action suits as acknowledged in the preceding paragraph, the existing clause in PayPal‟s User Agreement requiring users to pursue claims against it in one of its own jurisdictions is contrary to the precedent set forth by Judge Fogel‟s ruling. It is therefore requested that the Defendant‟s challenge to venue be summarily denied. PayPal Lawyer further requests that, should it be determined that the case be heard in New York County, the hearing date be continued to allow PayPal‟s corporate travel department “at least one week to arrange out-of-state travel arrangements”. This case is currently scheduled to be heard on YOUR COURT DATE which, by PayPal‟s own statement, provides sufficient time for the necessary travel arrangements to be made. Additionally, PayPal‟s request to adjourn this case to a later date, if upheld, would cause me to lose further time from work and would therefore pose a prohibitive financial burden upon me as the Plaintiff. I respectfully request that the Defendant‟s motion to continue the hearing date be denied and that the case be heard on YOUR COURT DATE in accordance with the timely served notice by the Court. Finally, in response to PayPal Lawyer assertion that “PayPal is entitled to seek its legal costs relating to enforcing the dispute resolution provision if Plaintiff refuses to comply with the terms of [the User Agreement]”, I believe this to be clear evidence of PayPal employing means of intimidation in attempt to prevent average users like myself of eBay Inc., its parent corporation, from challenging the legality of any of its determinations in the course of business. I thank you for your time and consideration in this matter. Should you have any questions, please contact me at (XXX) XXX-XXXX. Respectfully submitted,

John Doe Plaintiff Your Street Address New York, New York 10000 CC: PayPal, Inc. Attn: Paypal Lawyer 2211 North First Street San Jose, CA 95131



								
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