Etsy is changing its Terms of Use effective September 15, 2024, and existing sellers and buyers will not be able to opt out of its new arbitration clause. Only users new to Etsy will be able to opt “within 30 days after you first accept the Terms.”
A major change to the arbitration agreement in Etsy’s Terms is that in cases where the amount of a dispute is less than $25,000, the arbitration will be conducted as a documents-only arbitration – there will be no in-person or telephonic hearing.
For cases where the amount of a dispute is $25,000 or more, the arbitration will be held by videoconference with no in-person hearing (currently either party could request an in-person hearing and it would be up to the arbitrator to decide whether to grant it – that will no longer be the case beginning September 15th).
The arbitration agreement in Etsy’s user agreement sets out the steps required in cases where a dispute arises between Etsy and users, and it mandates arbitration as a final resort (“All other Disputes must be arbitrated, which means you and Etsy are each waiving your right to sue in court and have a court or jury trial.”) Until now, users could opt out of the arbitration agreement.
But note the difference between the current arbitration opt-out notice (Section 11, paragraph G):
“G. Opt out. You have a limited right to opt out of this Arbitration Agreement (excluding Section 11.I). Specifically, if you are a new user of our Services, you can opt out of this Arbitration Agreement within 30 days after you first accept the Terms. If you are an existing user of our Services, you can opt out within 30 days after the effective date (listed above). To opt out, you must send a timely email to arbitrationoptout@etsy.com with your name, the email address for your account, your username and your shop name (if applicable), and a request to opt out of arbitration. If you validly opt out, neither Etsy nor you will be required to arbitrate as a result of this (or any prior version of the) Arbitration Agreement, but the Terms (and any other agreements between us) will otherwise apply to you. If we update the Terms after you validly opt out, we will continue to respect your opt-out, but such updates do not provide a new opportunity to opt out of arbitration.”
and the opt-out notice that goes into effect next month:
“G. Opt out. If you are a new user of our Services, you can opt out of this Arbitration Agreement (excluding Section 11.I) within 30 days after you first accept the Terms. To opt out, you must send a timely email to arbitrationoptout@etsy.com with your name, the email address for your account, your username and your shop name (if applicable), and a request to opt out of arbitration. If you validly opt out, neither Etsy nor you will be required to arbitrate as a result of this (or any prior version of the) Arbitration Agreement, but the Terms (and any other agreements between us) will otherwise apply to you. If we update the Terms after you validly opt out, we will continue to respect your opt-out, but such updates do not provide a new opportunity to opt out of arbitration.”
Sellers who chose not to opt out of the arbitration agreement previously could be forgiven for being peeved that Etsy changed the rules about being able to opt out of arbitration without any advance notice, with the new Terms of Use deleting the provision: “If you are an existing user of our Services, you can opt out within 30 days after the effective date (listed above)” – especially considering how significant the change to the arbitration rules.
