Faten Anwar, V. Paypal Inc. ( 2024 )

IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
FATEN ANWAR,
No. 86255-3-I
Appellant,
DIVISION ONE
v.
UNPUBLISHED OPINION
PAYPAL, INC.,
Respondent.
BIRK, J. — This appeal arises out of an arbitration agreement signed by
Faten Anwar when she created an account with PayPal Inc. After Anwar filed a
lawsuit against PayPal, the trial court compelled the parties to submit to arbitration
and directed Anwar to initiate arbitration within 30 days or her complaint would be
subject to dismissal. When Anwar failed to initiate arbitration within the allotted
time, the trial court dismissed her complaint. Because Anwar fails to demonstrate
that the arbitration agreement was not enforceable or that the trial court committed
any error, we affirm the dismissal of her claims.
I
Anwar opened an account with PayPal in 2016. In order to create the
account, she accepted the terms of PayPal’s user agreement. The user
agreement applicable in 2016 contained an “Agreement to Arbitrate” (hereinafter
the Agreement), which read as follows:
You and PayPal each agree that any and all disputes or claims that
have arisen or may arise between you and PayPal, including without
No. 86255-3-I/2
limitation federal and state statutory claims, common law claims, and
those based in contract, tort, fraud, misrepresentation or any other
legal theory, shall be resolved exclusively through final and binding
arbitration, rather than in court, except that you may assert claims in
small claims court, if your claims qualify and so long as the matter
remains in such court and advances only on an individual (non-class,
non-representative) basis. This Agreement to Arbitrate is intended
to be broadly interpreted. The Federal Arbitration Act [1] governs the
interpretation and enforcement of this Agreement to Arbitrate.[2]
(Boldface omitted.) The agreement notified new account holders that they could
opt out of the Agreement if they mailed a written opt-out notice to PayPal. Anwar
did not notify PayPal that she wanted to opt out of the agreement.
On March 12, 2021, a transaction was made using Anwar’s PayPal account
to purchase floral adhesive tape for $9.92 via eBay.3 On March 18, 2021, Anwar
reported the transaction to PayPal as unauthorized during a login session using
the same login credentials, Internet protocol address, and visitor identification as
used for the payment authorization for the purchase. PayPal received confirmation
from eBay of the purchase and delivery of a package to Anwar’s address before
she reported the transaction as unauthorized. After an investigation, PayPal
concluded the transaction was not fraudulent and declined to refund $9.92 to
Anwar’s account.
Anwar then filed a complaint against PayPal in superior court asserting
claims for violations of Washington’s Consumer Protection Act (CPA), ch. 19.86
RCW, and the commercial electronic mail act (CEMA), ch. 19.190 RCW. In her
1 9 U.S.C. §§ 1-16.
2 The current version of the User Agreement also contains an Agreement to
Arbitrate; however, the record cuts off a significant portion of the text. The parties
do not appear to dispute that the two agreements are substantially similar.
3 “eBay” is an Internet site on which individuals can post items for sale or
purchase items, either through an online auction or at fixed, “buy-it-now,” prices.
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complaint, Anwar alleged that PayPal “process[ed] an unauthorized charge to my
account in the amount of $9.92,” “email[ed] me a fraudulent notice of
authorization,” and “email[ed] me a fraudulent email about a fraudulent shipment
with a fraudulent tracking number.” Anwar sought damages under the CPA in the
amount of $29.76, the $9.92 charge trebled, and statutory damages under CEMA
in the amount of $2,500.00, $500.00 for each for each of the five allegedly
“fraudulent” e-mails she received from PayPal. Anwar additionally sought litigation
costs. PayPal denied Anwar’s claims and asserted that the claims were subject to
binding arbitration.
Anwar filed a summary judgment motion seeking a judgment on her claims
as a matter of law and opposing arbitration. PayPal opposed her motion and asked
the court to compel arbitration pursuant to the Agreement. PayPal provided a
declaration of its employee Grace Garcia, whose job included accessing and
analyzing PayPal user account records to confirm information regarding user
account activities. As to Anwar’s claim based on PayPal’s use of different
transaction numbers, Garcia explained that PayPal assigned three numbers to
identify the different actions associated with the $9.92 charge: one to the
authorization for a transaction; one to the completed transaction; and one to the
bank transfer that funded payment for the transaction. Anwar filed a reply in
support of her summary judgment motion and reiterated her opposition to
arbitration, arguing her claims were not covered by the Agreement, the Agreement
was unconscionable, and PayPal waived its right to arbitration.
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On August 9, 2023, the trial court entered an order denying Anwar’s
summary judgment motion and compelling arbitration. On August 29, 2023, the
court entered an order staying the case pending arbitration. In this order, the court
directed Anwar to initiate arbitration within 30 days, warning her that if she failed
to do so, her complaint would be dismissed.
Anwar sought discretionary review of the trial court’s orders denying her
summary judgment motion, compelling arbitration, and staying the case pending
arbitration. This court denied discretionary review after concluding that Anwar had
not demonstrated obvious or probable error by the trial court. Anwar then sought
discretionary review in the Supreme Court, which it denied. Ruling Den. Rev,
Anwar v. Paypal, Inc., No. 102838-5, at 5 (Wash. April 29, 2024).
On December 20, 2023, PayPal moved to dismiss Anwar’s complaint, as
more than 30 days had passed since the trial court issued its order staying the
case and ordering arbitration. The trial court granted the motion and dismissed
the action.
Anwar appeals.
II4
We review a decision compelling arbitration de novo. Wiese v. Cach, LLC,
189 Wn. App. 466, 473, 358 P.3d 1213 (2015). Our review is limited to determining
4 Although the user agreement in effect at the time Anwar filed her complaint
contains a choice of law provision stating that the laws of the State of Delaware
govern the agreement, PayPal has briefed this matter under a presumption that
Washington law applies. Absent sufficient proof of foreign law, courts should apply
forum law. B.C. Ministry of Health v. Homewood, 93 Wn. App. 702, 709, 970 P.2d
381 (1999). We therefore apply Washington law.
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whether Anwar’s claims are arbitrable, without weighing the potential merits of the
underlying claims. See Hanford Guards Union of Am., Loc. 21 v. Gen. Elec. Co.,
57 Wn.2d 491, 494, 358 P.2d 307 (1961). Both state and federal law require the
court to engage in every presumption in favor of arbitrability. Zuver v. Airtouch
Commc’ns, Inc., 153 Wn.2d 293, 302, 103 P.3d 753 (2004). “The party opposing
arbitration bears the burden of showing that the agreement is not enforceable.” Id.(citing Green Tree Fin. Corp. v. Randolph, 531 U.S. 79, 92, 121 S. Ct. 513, 148 L.
Ed. 2d 373 (2000); Stein v. Geonerco, Inc., 105 Wn. App. 41, 48, 17 P.3d 1266(2001)).
A
Anwar first asserts that the trial court erred by compelling arbitration
because the Agreement did not allow for “arbitration of arbitrability.” Her argument
misconstrues the procedural history in this matter.
In Anwar’s motion for summary judgment, Anwar argued that her claims
were not subject to arbitration because “the fraudulent activities that PayPal
engaged in don’t constitute a transaction” and that PayPal had waived its right to
arbitrate by filing an amended answer to her complaint. In response, PayPal
requested the court compel arbitration because the Agreement covered all
disputes with PayPal, not just those pertaining to transactions. Anwar reasserted
her original arguments against the Agreement on reply, and also argued that the
Agreement was unconscionable.
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Nothing in the trial court’s order indicates that it was deferring the question
of arbitrability to the arbitrator. To the contrary, in denying Anwar’s motion for
summary judgment and compelling arbitration, the trial court determined that the
matter was arbitrable. Anwar’s argument is without merit.
B
Anwar next asserts that the trial court erred by compelling arbitration
because her claims were not covered by the Agreement. Anwar contends that
because her “cause of action does not constitute a transaction” and does not “bear
on interstate commerce,” she cannot be compelled to arbitrate under the Federal
Arbitration Act (FAA), 9 U.S.C. §§ 1-16.5The Agreement states that the parties agree to arbitration for “any and all
disputes or claims that have arisen or may arise between you and PayPal,
including without limitation federal and state statutory claims, common law claims,
and those based in contract, tort, fraud, misrepresentation or any other legal
theory.” (Emphasis added.) The claims asserted by Anwar fall within the scope
of the Agreement.
5 Anwar also contends that PayPal’s arbitration agreement is too broad to
be enforceable. The only authority Anwar cites in support of this argument is Hearn
v. Comcast Cable Communications, LLC, 415 F.Supp.3d 1155 (N.D. Ga. 2019).
This case was reversed by the Eleventh Circuit. Hearn v. Comcast Cable
Commc’ns, LLC, 992 F.3d 1209 (11th Cir. 2021). Because Anwar fails to cite any
valid authority, her argument is unsupported and fails to justify relief.
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No. 86255-3-I/7
Anwar’s allegation that PayPal acted fraudulently does not suffice to bring
her claim outside the ambit of the FAA and therefore outside the ambit of the
Agreement. First, the Agreement specifies that it pertains to claims of fraud.
Second, the FAA contains no exceptions for allegations of fraud. Section two of
the FAA provides that a
written provision in any maritime transaction or a contract evidencing
a transaction involving commerce to settle by arbitration a
controversy thereafter arising out of such contract or transaction . . .
shall be valid, irrevocable, and enforceable, save upon such grounds
as exist at law or in equity for the revocation of any contract.
9 U.S.C. § 2 (emphasis added). “Under the plain language of Section 2 of the
FAA, the relevant question is not whether the claim arises from a transaction
involving commerce, but rather whether the contract containing the arbitration
clause ‘evidenc[es] a transaction involving commerce.’ ” Gilbert v. Indeed, Inc.,
513 F. Supp. 3d 374, 400 (S.D.N.Y. 2021) (alteration in original) (quoting 9 U.S.C.
§ 2). Anwar’s dispute under PayPal’s user agreement evidences a transaction
involving commerce.
Anwar nevertheless asserts that her claims do not relate to the user
agreement, citing two cases from the Eleventh Circuit Court of Appeals. The first
of these, Hemispherx Biopharma, Inc. v. Johannesburg Consol. Investments, 553
F.3d 1351, 1367 (11th Cir. 2008), concerned an arbitration clause contained in a
licensing agreement for Hemispherx’s data “ ‘in the field of double-stranded ribose
nucleic acids.’ ” Hemispherx’s claim was for fraudulent financial disclosures made
by the defendants during the course of an attempted hostile takeover of the
company. Id. The court held that because Hemispherx’s claim had nothing
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No. 86255-3-I/8
whatsoever to do with its licensing agreement, the arbitration clause did not apply.
Id. at 1367-68.
The other case cited by Anwar, Doe v. Princess Cruise Lines, Ltd., 657 F.3d
1204, 1208, 1211-12 (11th Cir. 2011), concerned the Jones Act, 6 U.S.C. § 30104,
and common law tort claims brought by an employee of a cruise line after she was
raped onboard and forbidden from disembarking to receive medical treatment.
The court held that the arbitration agreement contained in the plaintiff’s
employment contract did not apply to her common law tort claims, as they did not
arise out of the duties of her employment.6 Id. at 1219.
In both Hemispherx and Doe, the court applied the simple, clear test it
announced in an earlier decision to determine whether a claim relates to the
contract containing the arbitration clause:
[I]f the defendant “could have been” engaged in the allegedly tortious
actions even if it “had no contractual relationship with” the plaintiff,
then the dispute is not “an immediate, foreseeable result of the
performance of the contractual duties” and thus not within the scope
of an arbitration clause within that contract.
Hemispherx, 553 F.3d at 1367 (quoting Telecom Italia, SpA v. Wholesale Telecom
Corp., 248 F.3d 1109, 1116 (11th Cir.2001)); see also Doe, 657 F.3d at 1219-20.
Assuming this test were to apply in Washington, applying the test reveals that,
contrary to her argument, Anwar’s claims are related to PayPal’s user agreement.
In her complaint, Anwar alleges that PayPal “fraudulently charg[ed]” her for a
“fraudulent transaction that [Anwar] didn’t authorize” and “process[ed] a fraudulent
6 The plaintiff’s Jones Act, maritime, and wage claims fell under the scope
of the arbitration agreement, as those claims were dependent on her status as an
employee of the cruise line. Doe, 657 F.3d at 1221.
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charge to [Anwar’s] bank account.” These claims could not have accrued if Anwar
had not created a PayPal account, for which she was required to sign PayPal’s
user agreement. Thus, even Anwar’s authority demonstrates that her complaint
pertains to the user agreement containing the arbitration clause.
Second, Anwar’s claims against PayPal implicate interstate commerce such
that the FAA applies to disputes under its user agreement. In support of her
argument to the contrary, Anwar cites Satomi Owners Ass’n v. Satomi, LLC, 167
Wn.2d 781, 798, 225 P.3d 213 (2009). The court in Satomi considered whether
claims asserted under the Washington Condominium Act, chapter 64.34 RCW,
could be subject to arbitration under the FAA. Satomi, 167 Wn.2d at 797. Although
all of the parties involved were situated in Washington, the court held that claims
between them were still subject to arbitration under the FAA. Id. at 802.
Summarizing precedent from the U.S. Supreme Court, the court stated that “the
FAA applies to transactions involving an economic activity that, in the aggregate,
represent a general practice subject to federal control that bears on interstate
commerce in a substantial way.” Satomi, 167 Wn.2d at 799. The court held that
the transactions between the condominium owners and the condominium
associations bore on interstate commerce because the components used to build
the condominiums were sourced from out-of-state, some of the condominiums
were purchased by out-of-state residents, and some of the owners financed their
purchases through out-of-state financial companies. Id. at 802-03.
Satomi does not support Anwar’s argument. As Anwar acknowledged in
her complaint, PayPal is headquartered in California, yet does enough business in
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Washington to be subject to regulation by the Washington Department of Financial
Institutions. PayPal’s practices as outlined in its user agreement bear on interstate
commerce in a substantial way. Thus, PayPal’s Agreement falls within the ambit
of the FAA.
C
Anwar next asserts that the trial court erred by compelling arbitration
because the Agreement was unconscionable. An arbitration agreement is
considered void if it is either substantively or procedurally unconscionable.
Gandee v. LDL Freedom Enters., Inc., 176 Wn.2d 598, 603, 293 P.3d 1197 (2013)
(citing Adler v. Fred Lind Manor, 153 Wn.2d 331, 347, 103 P.3d 773 (2004)). An
agreement is substantively unconscionable when it is “ ‘one-sided or overly
harsh,’ ” “ ‘[s]hocking to the conscience,’ ” “ ‘monstrously harsh,’ ” or “ ‘exceedingly
calloused.’ ” Id. (alteration in original) (internal quotation marks omitted) (quoting
Adler, 153 Wn.2d at 344-45).
Anwar contends that the Agreement is substantively unconscionable
because (1) it includes a waiver of the right to bring a class action, (2) it gives
PayPal the “unrestricted right to take legal action, with no limitations whatsoever
on what it can recover, against its customers,” (3) it limits PayPal’s liability to direct
damages, and (4) it forecloses an award of costs. (Emphasis omitted.)
Anwar’s argument that the Agreement is unconscionable because it
includes a class action waiver was not asserted in her trial court pleadings. We
decline to consider this argument further. See RAP 2.5(a); State v. Riley, 121
Wn.2d 22, 31, 846 P.2d 1365 (1993) (“Arguments not raised in the trial court
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generally will not be considered on appeal.” (citing Van Vonno v. Hertz Corp., 120
Wn.2d 416, 427, 841 P.2d 1244 (1992)).
Anwar’s remaining arguments are based on a misreading of the terms of
the Agreement. The Agreement states that “[y]ou and PayPal each agree that any
and all disputes or claims that have arisen or may arise between you and PayPal
. . . shall be resolved exclusively through final and binding arbitration.” (Boldface
omitted and emphasis added.) The Agreement thus does not give PayPal the
“unrestricted right to take legal action” against its users, as the plain language
clearly binds both parties to its terms.
Rather than precluding an award of costs, the Agreement explicitly
contemplates that PayPal will pay the cost of arbitration. As the Agreement states,
“If the value of the relief sought is $10,000 or less, at your request, PayPal will pay
all filing, administration, and arbitrator fees associated with the arbitration.”7 This
applies even if the user’s claims are not successful; only if the claims are deemed
frivolous would the user be responsible for costs.
Additionally, the limitation of liability is not part of the Agreement. Instead,
this limitation is contained in a separate part of PayPal’s user agreement under the
header “General Provisions.” Challenges to the terms of a contract other than the
arbitration clause are matters for the arbitrator to decide. Buckeye Check Cashing,
Inc. v. Cardegna, 546 U.S. 440, 445-46, 126 S. Ct. 1204, 163 L. Ed. 2d 1038 (2006)
7 For claims valued at over $10,000, the agreement states that “PayPal will
pay as much of the filing, administration, and arbitrator fees as the arbitrator(s)
deem necessary to prevent the cost of accessing the arbitration from being
prohibitive,” if the user can demonstrate that the costs of arbitration are prohibitive
when compared to court costs.
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(“[U]nless the challenge is to the arbitration clause itself, the issue of the contract's
validity is considered by the arbitrator in the first instance.”).
Finally, we note that the Agreement contains an opt-out provision that
Anwar could have used had she not wanted to agree to arbitrate her claims against
PayPal. She chose not to do so. Anwar does not satisfy her burden to show that
the Agreement is substantively unconscionable. The trial court did not err by
compelling arbitration.
D
Anwar finally asserts that PayPal waived its right to arbitration. Anwar
contends that PayPal’s inclusion of a request for dismissal in its answer and
amended answer was an affirmative act that waived its right to enforce the
arbitration provision.
The right to arbitrate may be waived either explicitly or implicitly. Lake
Wash. Sch. Dist. No. 414 v. Mobile Modules Nw., Inc., 28 Wn. App. 59, 62, 621
P.2d 791 (1980). “[W]aiver cannot be found absent conduct inconsistent with any
other intention but to forego a known right.” Id.; see also Townsend v. Quadrant
Corp., 173 Wn.2d 451, 462, 268 P.3d 917 (2012). Any doubt about whether the
right has been waived should be decided in favor of arbitration. Schuster v.
Prestige Senior Mgmt., LLC, 193 Wn. App. 616, 632, 376 P.3d 412 (2016).
In Lake Washington School District, this court held that the defendant’s
assertion of a counterclaim and its limited use of discovery were not sufficient to
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No. 86255-3-I/13
constitute waiver of the right to seek arbitration.8 28 Wn. App. at 63-64. Here,
PayPal engaged in even less litigation conduct, as the only actions it engaged in
were to amend its answer and to respond to the summary judgment motion and
motions for default filed by Anwar. PayPal consistently asserted that Anwar’s
claims were subject to the Agreement. Nothing in PayPal’s conduct evidences an
intent to waive its right to arbitrate. Accordingly, the trial court did not err by
compelling arbitration.
III
Anwar additionally argues that the trial court erred by dismissing her
complaint while she was pursuing discretionary review of the orders compelling
arbitration and staying proceedings. Anwar contends that the case was not subject
to dismissal because discretionary review should have been granted. Both this
court and the Supreme Court have already determined that discretionary review
was not warranted. We decline to revisit that determination.
A trial court retains full authority over a case unless and until this court
accepts review. RAP 7.1. The trial court’s order staying the matter for arbitration
clearly stated that Anwar “shall initiate the [American Arbitration Association (AAA)]
arbitration proceeding within 30 days of the date of this Order,” and that “if [Anwar]
fails to initiate AAA arbitration within 30 days, this matter shall be dismissed.”
(Emphasis added.) Due to her failure to initiate arbitration, the trial court dismissed
8 The federal cases Anwar relies on all concern litigants who filed dispositive
motions before asserting that the matter was subject to arbitration. Because
PayPal did not file any dispositive motions, those cases have no application here.
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Anwar’s complaint on January 4, 2024, well after the 30 day deadline it previously
imposed. The trial court did not err by doing so.
IV
PayPal requests an award of attorney fees pursuant to RAP 18.9, asserting
that Anwar’s appeal is frivolous. “An appeal is frivolous if, considering the entire
record, the court is convinced that the appeal presents no debatable issues upon
which reasonable minds might differ, and that the appeal is so devoid of merit that
there is no possibility of reversal.” Advocs. for Responsible Dev. v. W. Wash.
Growth Mgmt. Hr’gs Bd., 170 Wn.2d 577, 580, 245 P.3d 764 (2010). “[A]ll doubts
as to whether the appeal is frivolous should be resolved in favor of the appellant.”
Streater v. White, 26 Wn. App. 430, 435, 613 P.2d 187 (1980).
While it is true that Anwar presented substantially the same arguments in
support of her earlier notice for discretionary review, and this court and the
Supreme Court rejected those arguments in declining discretionary review, those
decisions were made in the context of the standards for discretionary review under
RAP 2.3(b). See RAP 2.3(b)(1)-(2) (generally requiring party seeking discretionary
review to show “obvious” or “probable” error having effects on the proceedings);
Minehart v. Morning Star Boys Ranch, Inc., 156 Wn. App. 457, 462, 232 P.3d 591(2010) (“Interlocutory review is disfavored.”). In this appeal from the subsequent
dismissal of Anwar’s action, we reach her contentions on the merits for the first
time. In light of this, and because we give Anwar the benefit of the doubt before
deeming her appeal frivolous, we decline to award reasonable attorney fees to
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PayPal at this time. However, as prevailing party, PayPal shall recover its costs
pursuant to RAP 14.2.9
Affirmed.
WE CONCUR:
9 Anwar’s request for costs and for sanctions against PayPal is denied.
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