BDO USA, LLP v. Jia-Sobota & A2Z Assoc., Inc. D/B/A Everglade Consulting

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DISTRICT OF COLUMBIA COURT OF APPEALS

Nos. 20-CV-536 & 20-CV-696

BDO USA, LLP, et al., APPELLANTS,

V.

ERIC JIA-SOBOTA &
A2Z ASSOCIATES, INC. D/B/A EVERGLADE CONSULTING, APPELLEES.

Appeal from the Superior Court
of the District of Columbia
(2020 CAB 2600)

(Hon. Heidi M. Pasichow, Trial Judge)

(Argued Jan. 27, 2022 Decided October 6, 2022)

Michael B. Kimberly, with whom James M. Commons and Julie H. McConnell
were on the brief, for appellant.

Brian Walsh, with whom Ari Micha Wilkenfeld, Todd A. Bromberg, Krystal
B. Swendsboe, and Hyok Chang were on the brief, for appellee.

Before BLACKBURNE-RIGSBY, Chief Judge, DEAHL, Associate Judge, and
STEADMAN, Senior Judge.

Opinion of the court by Associate Judge DEAHL.

Concurring opinion by Associate Judge DEAHL at page 25.
 2

DEAHL, Associate Judge: Eric Jia-Sobota was a partner at BDO USA, LLP,

an accounting firm. He resigned from the partnership to launch a competing firm,

and BDO invoked its right to arbitrate various disputes attendant to his departure,

mostly involving Jia-Sobota’s attempts to bring BDO clients and personnel to his

new firm. Around the same time, BDO—pointing to a provision in its arbitration

agreement with Jia-Sobota that allowed either party to “seek provisional remedies”

in court—filed a complaint in Superior Court seeking to enjoin Jia-Sobota from

doing business with or soliciting BDO’s clients, or otherwise using its proprietary

information, while the arbitration proceedings were pending.

When BDO then moved to compel arbitration, the trial court denied the

motion, ruling that BDO had implicitly waived its right to enforce the arbitration

clause through its litigation tactics. BDO now challenges that ruling in this appeal.

Because it is uncontested that the arbitration agreement between BDO and Jia-

Sobota allowed either party to pursue an injunction without waiving its arbitration

rights, and because Jia-Sobota has not shown that BDO took any action inconsistent

with its intent to arbitrate its underlying claims, we agree with BDO that it did not

waive its right to arbitrate, contrary to the trial court’s ruling. See generally TRG

Customer Sols., Inc. v. Smith, 226 A.3d 751 (D.C. 2020).
 3

Jia-Sobota argues that we should nonetheless affirm on the alternative ground

that the arbitration clause is unenforceable because it contemplates an arbitration

panel composed entirely of BDO’s own partners. In Jia-Sobota’s view, permitting

BDO’s partners to effectively sit in judgment of their own case would be both

unconscionable and against public policy, given their patent self-interest. The trial

court did not reach the question of enforceability, however, and we decline to resolve

it without the benefit of the trial court’s input. We therefore vacate the trial court’s

order concluding that BDO waived its right to arbitrate and remand for consideration

of Jia-Sobota’s challenges to the enforceability of the arbitration agreement.

I.

Eric Jia-Sobota was a partner at BDO for eight years. When he entered the

partnership in 2012, he signed a partnership agreement providing that, in the event

he left the partnership, he would be precluded from soliciting BDO clients and luring

away BDO employees for two years. The agreement also included an arbitration

clause. That clause states that “[a]ny controversy or dispute relating to this

Agreement or the Partnership and its affairs or otherwise arising between a Partner

and the Partnership . . . shall be considered and decided by an arbitration panel

consisting of two (2) members of [BDO’s] Board of Directors,” and three BDO
 4

partners who did not sit on the board. An earlier provision in the agreement that is

relevant in this dispute states that “[t]he term ‘Partner’ herein includes ‘former

Partner.’” Notwithstanding the arbitration clause, the agreement also expressly

permitted either party to “seek provisional remedies from a court.”

Jia-Sobota submitted notice of his intent to withdraw from the partnership in

April of 2020, at which point he was serving as head of BDO’s Industry Specialty

Services Group. BDO responded by cutting Jia-Sobota off from access to his

company email, partnership resources, and his colleagues. Jia-Sobota started a new

firm called EverGlade Consulting the following month. According to BDO,

Everglade’s launch was the culmination of a “months-long scheme” through which

Jia-Sobota planned to lure BDO clients and employees to his new firm, effectively

stealing the Industry Specialty Services Group practice from BDO. Jia-Sobota’s

maneuvering violated his fiduciary duty to the partnership, as well as the anti-

poaching and non-compete provisions in the partnership agreement, in BDO’s view.

In the months that followed, BDO pursued these claims via a two-track

litigation strategy. First, on May 26, BDO filed a “Complaint for Injunctive Relief

in Aid of Arbitration” in Superior Court, naming both Jia-Sobota and EverGlade as

defendants. In the first paragraph of its complaint, BDO stated that it was seeking
 5

“a temporary restraining order and a preliminary injunction in aid of arbitration, as

expressly authorized by the partnership agreement.” 1 BDO asked the court to enjoin

Jia-Sobota and Everglade “from utilizing any and all BDO trade secrets and

confidential or proprietary information, doing business with or soliciting business

from BDO clients or prospective clients, or offering employment to any current

employee of BDO during the pendency of arbitral proceedings.”

While seeking this injunction from the trial court, BDO simultaneously took

steps to initiate arbitration of its underlying claims against Jia-Sobota. On June 5,

ten days after filing its complaint in Superior Court, BDO filed its “demand for

arbitration,” summarizing its claims against Jia-Sobota and triggering the arbitration

process. Soon thereafter, BDO wrote to Jia-Sobota requesting his input in selecting

the members of the arbitration panel, though Jia-Sobota demurred.

Meanwhile, in court, BDO sought and was granted expedited discovery in

support of its requests for injunctive relief. BDO was aggressive with its discovery

1
A temporary restraining order is often a precursor to a preliminary
injunction. It is a more immediate and typically briefer form of injunctive relief,
often used to preserve the status quo while the parties litigate the propriety of a more
extended injunction. See generally D.C. Sup. Ct. Civ. R. 65(a)-(b) (describing the
two, with temporary restraining orders expiring after fourteen days unless extended).
 6

requests, demanding a wide assortment of information and documents from Jia-

Sobota, EverGlade, and a number of third parties, spanning the entire eight years of

Jia-Sobota’s partnership. BDO also sought to take at least eight depositions of

parties and non-parties alike. On June 11, Jia-Sobota filed an answer to BDO’s

complaint, which included several affirmative defenses to BDO’s claims as well as

six counterclaims against BDO, its CEO, and its affiliates. Two of those

counterclaims are relevant here. First, Jia-Sobota claimed that, during his

employment, BDO had made material misrepresentations in violation of the False

Claims Act. See 31 U.S.C. §§ 3729 to 3731. Second, Jia-Sobota sought a

declaratory judgment that the arbitration clause in his partnership agreement with

BDO was unconscionable and therefore unenforceable against him. Jia-Sobota

followed his answer with discovery requests of his own.

On June 17—six days after Jia-Sobota filed his answer and counterclaims but

before BDO responded—the trial court denied BDO’s motion for a temporary

restraining order. The court’s denial of BDO’s TRO request expressed some

skepticism about the merits of BDO’s case. Twelve days later, on June 29, BDO

moved (1) to compel arbitration on four of Jia-Sobota’s counterclaims and (2) to

dismiss with prejudice Jia-Sobota’s purportedly non-arbitrable counterclaims under
 7

the False Claims Act and for declaratory judgment. 2 Two days after that, Jia-Sobota

moved to stay all arbitration. He made two arguments in support of his motion: (1)

that BDO had waived its arbitration rights by litigating in a manner inconsistent with

an intention to arbitrate, and (2) that, in any event, the arbitration clause was

unenforceable by BDO because it was both unconscionable and against public

policy. The parties then agreed to postpone a then-imminent preliminary injunction

hearing until September.

On September 2, before the preliminary injunction hearing, the trial court

denied BDO’s motion to compel arbitration of Jia-Sobota’s counterclaims. The

court found that BDO had waived its right to compel arbitration by “engag[ing] in

conduct inconsistent with the arbitration right.” More specifically, the court faulted

BDO for (1) seeking a ruling on the merits regarding two of Jia-Sobota’s

counterclaims, (2) waiting until after the court had denied the TRO to move to

compel arbitration, and (3) “engag[ing] in substantial amounts of discovery.” The

court did not reach Jia-Sobota’s argument that the arbitration clause was

2
In its motion to dismiss, BDO argued Jia-Sobota’s counterclaim under the
False Claims Act was non-arbitrable as a matter of law because an action under that
statute must be brought in the name of the United States, which has a right to
intervene and may not be bound by private parties’ arbitration agreements. See 31
U.S.C. §§ 3730(b)(1)-(2).
 8

unconscionable, having found that BDO had waived its right to arbitrate regardless.

In a move that appears to have caused some confusion among the parties, the court

also denied Jia-Sobota’s motion to stay arbitration, explaining that the parties

remained free to pursue arbitration if they mutually wished to do so: “In sum, if the

parties wish to arbitrate, they may. If, conversely, any party chooses not to engage

in arbitration, the Court will not compel” that party to do so. BDO appealed.

The following month, with its first appeal pending, BDO took steps to proceed

with the arbitration of its original claims against Jia-Sobota. BDO wrote to the

arbitration administrator to request a panel be formed without input from Jia-Sobota

because of his recalcitrance in the arbitration process. Jia-Sobota responded by

asking the trial court to order BDO to show cause why it should not be held in

contempt for violating the court’s September 2 order. BDO opposed that motion,

arguing that the trial court’s September 2 order had dealt solely with BDO’s

authority to compel arbitration of Jia-Sobota’s counterclaims, and in no way

inhibited BDO’s right to arbitrate its own claims.

The court disagreed. In a November 9 order, it characterized its prior

September 2 order as barring arbitration of not only Jia-Sobota’s counterclaims, but

of BDO’s original claims as well. Accordingly, the trial court found that “a request
 9

from [BDO] . . . to proceed forward by selecting an arbitration panel based upon the

very arbitration clause that this Court found [BDO] waived enforcement of is in

direct contradiction with this Court’s findings,” and ordered BDO to show cause

why it should not be held in contempt. BDO appealed that order as well, and we

consolidated its two appeals.

II.

We begin by dismissing BDO’s appeal from the November 9 order to show

cause why it should not be held in contempt (No. 20-CV-696). We lack jurisdiction

to entertain that appeal because the order to show cause is not a final order, see D.C.

Code § 11-721(a)(1); RFB Props. II, LLC v. Deutsche Bank Tr. Co. Ams., 247 A.3d

689, 694 (D.C. 2021) (citing Rolinski v. Lewis, 828 A.2d 739, 746 (D.C. 2003) (en

banc)), nor is it appealable under any exception to the general rule that only final

orders are appealable. See D.C. Code §§ 11-721(a)(2) and (3). This dismissal is

ultimately of little consequence, however, because BDO’s principal challenge to the

November 9 order is that the trial court erred in concluding that BDO waived its

arbitration rights, which is the same attack it directs at the September 2 order.
 10

III.

We now turn to the question of whether BDO waived its right to arbitrate.

“District of Columbia and federal law broadly protect the right of a party to contract

for the use of arbitration” in lieu of judicial proceedings. TRG, 226 A.3d at 755.3

An arbitration agreement is “a creature of contract,” and the parties should generally

“be held to the terms to which they have agreed.” Hercules & Co. v. Shama Rest.

Corp., 613 A.2d 916, 923 (D.C. 1992). “However, like any contract right, the right

to arbitrate may be waived—either expressly or by implication.” TRG, 226 A.3d at

755 (citing Hercules & Co. v. Beltway Carpet Serv. Inc., 592 A.2d 1069, 1073 (D.C.

1991)). In evaluating whether a party has implicitly waived its right to enforce an

arbitration clause, “the essential question is whether, under the totality of the

3
The trial court applied the District’s law when assessing whether BDO
waived its right to arbitrate. BDO did not object at the time. Now, for the first time
on appeal, BDO argues that New York law should apply to the question of waiver,
citing a provision in the partnership agreement providing that New York law applies
to “the validity, construction, administration and effect of the” arbitration clause.
We reject that argument for two reasons. First, it is not clear that the question of
waiver concerns “the validity, construction, administration [or] effect” of the
arbitration clause. Second, and more importantly, BDO has waived the argument
that New York law applies to the question of waiver (as opposed to enforceability)
because BDO never made that argument in trial court. See Williams v. Gerstenfeld,
514 A.2d 1172, 1177 (D.C. 1986) (“As a general rule, matters not properly presented
to a trial court will not be resolved on appeal.”). We therefore apply the District’s
law, as the trial court did.
 11

circumstances, [that] party has acted inconsistently with the arbitration right” as

defined by the terms of agreement. Id. (citation omitted); see also SJ Enters., LLC

v. Quander, 207 A.3d 1179, 1184 (D.C. 2019) (“[W]aiver [of a contractual right] . . .

may be inferred from conduct inconsistent with an intent to enforce that right.”

(citation omitted)). 4 Whether a party has implicitly waived its right to arbitrate is a

question of law that we consider de novo. Hercules, 592 A.2d at 1073.

The question of waiver is a fact-intensive inquiry. See Hossain v. JMU

Props., LLC, 147 A.3d 816, 822 (D.C. 2016). Because the parties’ rights and

obligations are defined by contract, it is not enough for us to examine their actions

in a vacuum; we must consider the potential conflict between the parties’ actions and

the arbitration right as defined by the agreement at issue. An action that constitutes

waiver in one case might be perfectly compatible with arbitration in another.

Bearing that in mind, our caselaw suggests the following, non-exhaustive list of

4
In TRG, we also said that arbitration holds a “favored status,” so that we
“must resolve any ambiguity regarding the scope of a waiver in favor of arbitration.”
226 A.3d at 756 (citations omitted). We do not rely on that principle here, but note
that its continuing vitality is subject to doubt after the Supreme Court decided
Morgan v. Sundance, Inc., 142 S. Ct. 1708 (2022). Morgan held, with regard to
federal law, that “a court may not devise novel rules to favor arbitration over
litigation.” Id. at 1713. “The federal policy is about treating arbitration contracts
like all others, not about fostering arbitration.” Id. Because we conclude that BDO
did not waive its right to arbitrate, we have no cause to consider what (if any) effect
Morgan has on the ongoing validity of the presumption we articulated in TRG.
 12

“parameters” or “themes,” TRG, 226 A.3d at 757, that counsel in favor of finding

waiver:

• An “unexplained delay . . . [that] cannot be squared with an intent to
arbitrate” according to the terms of the agreement. Id. at 758 (defendant
did not communicate desire to arbitrate until five months after initiation of
judicial proceedings); see also Cornell & Co. v. Barber & Ross Co., 360
F.2d 512, 513 (D.C. Cir. 1966) (four months);

• Motions practice that “invokes the authority of the trial judge to alter the
course of the case,” TRG, 226 A.3d at 759, or uses arbitration as a “strategy
to manipulate the legal process” and get a “‘second bite’ at a favorable
outcome,” id. at 758 (quoting Nat’l Found. for Cancer Rsch. v. A.G.
Edwards & Sons, Inc., 821 F.2d 772, 776 (D.C. Cir. 1987)) (defendant
filed two dismissal motions, entered into a “scheduling order
contemplating a lengthy discovery period,” and moved to dismiss for
forum non conveniens before moving to compel arbitration, id. at 759); see
also, e.g., Khan v. Parsons Glob. Servs., Ltd., 521 F.3d 421, 427 (D.C. Cir.
2008) (defendant moved for summary judgment of an arbitrable claim);

• The “conscious decision to exploit the benefits of pretrial discovery . . .
with relation to [] arbitrable claims,” where such discovery is “fully
available . . . only in the judicial forum.” TRG, 226 A.3d at 758 (quoting
Nat’l Found., 821 F.2d at 776); see also Nat’l Found., 821 F.2d at 773
(parties engaged in two years’ worth of discovery before invoking the
arbitration right);

• And, perhaps, prejudice to the party opposing arbitration. Hossain, 147
A.3d at 823 (clarifying that, “prejudice, [] although not necessary, is a
factor that can be taken into account”); but see Morgan v. Sundance, Inc.,
142 S. Ct. 1708, 1712-13 (2022). 5

5
In Morgan, the Supreme Court recently suggested that, at least with regard
to federal law, any inquiry into prejudice may be improper. 142 S. Ct. at 1713
(“Outside the arbitration context, a federal court assessing waiver . . . focuses on the
actions of the person who held the right; the court seldom considers the effects of
 13

Taking the above considerations as they apply to the partnership agreement

between BDO and Jia-Sobota, we conclude that BDO did not implicitly waive its

arbitration right. BDO was fully within its contractual rights to pursue a “two-track”

litigation strategy, simultaneously seeking injunctive relief and pursuing arbitration

of its underlying claims against Jia-Sobota. As it did so, BDO clearly and

consistently stated its intention to arbitrate, and never acted inconsistently with that

express intention.

A. Unexplained Delay

The trial court relied heavily on the fact that BDO did not move to compel

arbitration until after the court denied BDO’s request for a TRO and expressed some

skepticism as to the merits of BDO’s claims. In the court’s view, that demonstrated

the kind of “gamesmanship and manipulation” of the litigation process that should

be discouraged. TRG, 226 A.3d at 760. We disagree. Recall that BDO demanded

arbitration of its own claims on June 5, just ten days after filing its complaint in

Superior Court and well before the court had ruled on (and before Jia-Sobota even

those actions on the opposing party. That analysis applies to the waiver of a
contractual right, as of any other.”). We nonetheless consider prejudice below, and
need not grapple with the extent to which Morgan calls into doubt our precedents
placing stock in it, because there is no meaningful prejudice here in any event.
 14

responded to) BDO’s TRO request. While it is true that BDO did not move to

compel arbitration of Jia-Sobota’s counterclaims until after the court had denied its

TRO request, BDO had only the most fleeting opportunity to do so. Jia-Sobota filed

his answer and counterclaims on June 11. The court denied BDO’s TRO request

only six days later, on June 17. And it was only twelve days after that, on June 29,

when BDO moved to compel arbitration of (most of) those counterclaims in a

substantive filing that undoubtedly and understandably took considerable care and

time to draft. That timeline does not suggest strategic delay on BDO’s part; it

evinces reasonable promptness. 6

BDO also made clear from the outset that its requests for injunctive relief were

“in aid of arbitration,” language that appeared in both the caption and first paragraph

of BDO’s complaint. And BDO’s motion for a TRO reiterated that “[a]ll of these

6
BDO emphasizes that the timeline in this case—days and weeks—is far
shorter than the timeline in other cases where courts have found waiver. That is true,
but that distinction is not dispositive on its own. This case is somewhat atypical in
that the party seeking arbitration, BDO, also initiated the litigation, while most of
our cases involve defendants who move to compel arbitration after being brought
into court. See, e.g., TRG, 226 A.3d at 753; Hercules, 592 A.2d at 1070; cf. Hossain,
147 A.3d at 817-18 (plaintiff sought to compel arbitration of a counterclaim). It is
to be expected that a defendant would take more time to decide whether to invoke
its right to arbitrate in response to a claim than would the party driving the litigation,
who might have foregone the court proceedings altogether.
 15

claims are subject to a binding arbitration agreement,” and the partnership agreement

was appended to the motion as the sole exhibit. Thus, the court was on notice well

before ruling on the TRO that BDO intended to arbitrate its underlying claims. If

the court believed ruling on the TRO request would tip its hand in some way that

was inconsistent with BDO retaining that right, it might have given some

forewarning to that effect, or simply not ruled until it was satisfied that BDO had

picked its preferred lane. 7 Its decision to rule on the TRO request instead, despite

all indications that BDO was seeking to arbitrate, cannot be counted against BDO in

the implied waiver calculus. There was no unexplained delay on BDO’s part because

there was nothing that could fairly be described as delay at all.

B. BDO’s Motion to Dismiss Two Claims

The trial court also found that BDO, in moving to dismiss two of Jia-Sobota’s

counterclaims, was “seeking a ruling on the merits,” which it deemed “inconsistent

with the arbitration right.” BDO responds that it moved to dismiss only Jia-Sobota’s

7
There is no evidence that BDO unreasonably delayed the arbitration process
itself. BDO contacted Jia-Sobota to begin constituting an arbitral panel within
weeks of filing its arbitration demand. Indeed, to the extent the arbitration process
was delayed, that delay was attributable to Jia-Sobota, who declined to engage in
initial steps of arbitration as he pressed his argument that arbitration should be
stayed.
 16

non-arbitrable claims, and that such a motion cannot support a finding that it waived

arbitration of its remaining, arbitrable claims. We agree. We have been clear that a

motion for judgment on the merits of non-arbitrable claims does not constitute

waiver as to other, arbitrable claims. See Hercules, 592 A.2d at 1075 (“The trial

judge’s conclusion that Hercules’ filing of a motion for summary judgment on a non-

arbitrable count of the complaint constituted a waiver of its right to demand

arbitration was [] erroneous.”).

Jia-Sobota does not dispute BDO’s contention that the two claims on which

BDO sought dismissal were non-arbitrable. 8 Instead, he offers two other arguments

why BDO’s motion to dismiss affected a waiver, neither of which is persuasive.

First, Jia-Sobota argues that BDO, in its motion to compel arbitration, implicitly

sought a merits ruling on the enforceability of the arbitration clause against “three

parties that were not signatories” to the agreement (EverGlade, BDO Public Sector,

and BDO’s CEO). According to Jia-Sobota, making such a ruling would require the

court to make factual findings about “the relationship between” those parties, which

BDO could then treat as the law of the case in arbitration. But that issue is precisely

8
Jia-Sobota later amended his False Claims Act counterclaim in a manner that
arguably rendered it arbitrable, but he does not contend that it was arbitrable as
originally pled, which was what BDO sought to dismiss.
 17

the kind of “preliminary ‘gateway dispute[] about whether the parties are bound by

[an] arbitration clause’” that we have expressly found appropriate for a court to

decide attendant to arbitration. See Hossain, 147 A.3d at 821 (quoting Woodland

Ltd. P’ship v. Wulff, 868 A.2d 860, 864 (D.C. 2005)).

Second, Jia-Sobota points to what he claims is a disconnect between the scope

of BDO’s complaint and its demand for arbitration. He argues that because BDO’s

complaint included claims that it did not raise in arbitration, BDO was asking the

court to make merits rulings on those claims, at odds with its stated intent to arbitrate.

We disagree. BDO never asked the trial court to make merits judgements on any of

its claims. Its complaint made clear that BDO was seeking only injunctive relief. 9

In short, we conclude that BDO’s motion to dismiss Jia-Sobota’s non-arbitrable

claims did not “manipulate the legal process,” and its subsequent motion to compel

arbitration was not an attempt to procure an ill-gotten “‘second bite’ at a favorable

outcome.” TRG, 226 A.3d at 758 (quoting Nat’l Found., 821 F.2d at 776).

9
Jia-Sobota also argues in passing that we should consider BDO’s conduct in
other litigation arising from the same events as evidence that BDO “does not care
about arbitration.” There is little in the record to inform us about the details of the
other cases he cites, all of which were filed in the summer of 2020 in New York state
courts. Suffice to say that Jia-Sobota’s agreement with BDO provided only that the
parties had the option to arbitrate. There is nothing in the agreement that requires
BDO to be consistent about how it exercises that option with regard to other disputes,
under different law, in other courts.
 18

C. Exploiting Pretrial Discovery

Jia-Sobota’s strongest point comes in this third consideration. The substantial

amounts of discovery that BDO engaged in to support its claim for injunctive relief

conflicts with its stated desire to pursue arbitration, where discovery rights are

considerably more curtailed. Still, it is important to recall that the partnership

agreement expressly permitted either party to seek injunctive relief without waiving

its right to arbitration, and that BDO consistently represented to the court that it was

doing just that.

Jia-Sobota does not dispute that BDO’s contractual right to seek prospective

relief included the right to engage in some discovery. Instead, Jia-Sobota contends

that the breadth of that discovery affected a waiver. He argues that BDO’s discovery

requests were (a) overly aggressive, seeking evidence outside the scope of its

injunction request in order to build its case in advance of arbitration with evidence

that would be inaccessible via arbitration alone, and (b) one-sided, because BDO

aggressively sought to limit Jia-Sobota’s discovery and because Jia-Sobota—under

BDO’s arbitration rules—is not guaranteed any meaningful right to discovery in the

arbitration itself. BDO, in contrast, maintains that its discovery requests were

“carefully tailored to the issues presented” in its requests for injunctive relief, and
 19

that the scope of those requests was justified because its case is “factually complex”

and requires “substantial investigation” to prove.

We agree with the premise of Jia-Sobota’s argument—that BDO’s right to in-

court discovery was limited to what was relevant to support its injunction request.

To the extent its discovery requests exceeded that scope, and discovery was not

targeted at questions underlying the injunction request but instead leveraged the

court’s resources and authority to harass Jia-Sobota or to gather evidence that was

not relevant to its in-court claims in order to build its case in arbitration, that would

surely represent the kind of “gamesmanship and manipulation” our precedents seek

to prevent. TRG, 226 A.3d at 760. However, in this case, it is difficult to identify

any impermissible discovery request because in order to secure an injunction BDO

was obliged to demonstrate a “substantial likelihood” that it would “prevail on the

merits” of its underlying claims. Feaster v. Vance, 832 A.2d 1277, 1287 (D.C. 2003)

(citation omitted). That means that most—if not all—the evidence relevant to

BDO’s underlying claims is also relevant to the injunction request and therefore

within the realm of permissible discovery in support of its in-court claim. See Super.

Ct. Civ. R. 26(b)(1) (“Parties may obtain discovery regarding any nonprivileged

matter that is relevant to any party’s claim or defense and proportional to the needs

of the case.”).
 20

The D.C. Circuit faced an analogous situation in National Foundation for

Cancer Research v. A.G. Edwards & Sons, Inc., 821 F.2d at 775. In that case, a

party was faced with both arbitrable and non-arbitrable claims arising from the same

transaction. Id. It engaged in discovery that was potentially relevant to both sets of

claims, and then sought to arbitrate only the arbitrable claims. Id. Although the

court emphasized that the mere existence of the non-arbitrable claims did not

foreclose a finding of waiver, it found that the overlap between the arbitrable and

non-arbitrable claims “counsel[ed] caution from inferring waiver from [the party’s]

discovery efforts.” Id. So too here. If anything, that caution is even more warranted

here, where the scope of the in-court litigation was explicitly limited to injunctive

relief, and the court was on notice of that. All of BDO’s motions for discovery were

made, and granted, on the grounds that the requested discovery was relevant to

BDO’s motion for an injunction. If the trial court felt that BDO’s discovery requests

exceeded the scope of the litigation, it should have denied those requests, or at least

sought clarification from BDO as to what remedies it was pursuing in the judicial

forum. Instead, the court granted BDO’s discovery requests, only to turn around

later and rule that those same requests were—notwithstanding the terms of the

partnership agreement—so extensive that BDO had waived its right to arbitrate.
 21

Exercising the same caution that the D.C. Circuit advised, we disagree with

the trial court’s assessment that BDO’s aggressive use of discovery weighs heavily

in favor of a waiver finding. Although we do not foreclose the possibility that late-

breaking evidence of genuine gamesmanship or duplicity by a party in BDO’s

position could support a finding of waiver, neither Jia-Sobota nor the trial court point

to any such evidence here. 10 In its absence, we decline to rule that BDO’s discovery

requests were out of bounds simply because they were also relevant to the claims it

wanted to arbitrate.

D. Prejudice

Although the trial court did not comment on the question of prejudice, Jia-

Sobota asks us to consider (1) the time and resources he has been forced to expend

10
Jia-Sobota encourages us to find such evidence in the one-sidedness of
BDO’s discovery—in particular the fact that it aggressively resisted Jia-Sobota’s
efforts in court to engage in discovery of his own, and that its arbitration rules do
not guarantee Jia-Sobota any meaningful discovery in arbitration. We decline to do
so. For one thing, if the trial court felt that the asymmetry of the discovery process
was unfair, there were less oppressive ways of levelling the scales. There is no
reason why it could not grant Jia-Sobota equally expansive discovery rights if
fairness so dictates. Moreover, as BDO concedes, any arbitration in this case is
subject to judicial review. Thus, if, after arbitration, it appears BDO has manipulated
the process to deprive Jia-Sobota of a fair opportunity to adjudicate his case, Jia-
Sobota will have recourse in the courts. See D.C. Code § 16-4423 (establishing
grounds to set aside an arbitral order).
 22

litigating BDO’s injunction claim, and (2) that BDO’s litigation tactics have allowed

it to gain access to information about Jia-Sobota and his firm that it would not have

been able to procure in arbitration. Those considerations carry little weight under

these circumstances. As explained above, in determining whether a party has

implicitly waived its right to arbitration, “the essential question is whether, under the

totality of the circumstances, [that] party has acted inconsistently with the arbitration

right” as defined by the terms of the agreement. TRG, 226 A.3d at 755. Jia-Sobota

has not shown that BDO has taken any such action. Whatever disadvantage may

have accrued to Jia-Sobota as a result of BDO’s litigation tactics, that disadvantage

stemmed from BDO’s compliance with the parties’ agreement. A party does not

waive a contractual right simply because exercising that right turns out to

disadvantage the other party.

Because the terms of Jia-Sobota’s partnership agreement allow BDO to

pursue a preliminary injunction in court without waiving its right to arbitration, and

because BDO has taken no action inconsistent with its intent to do exactly that, we

conclude BDO has not waived its right to arbitrate and vacate the trial court’s order

to the contrary.
 23

IV.

Jia-Sobota argues that even if BDO did not waive its right to arbitrate, the

arbitration clause is unenforceable both because it is unconscionable and against the

public policy of the District of Columbia. The trial court did not reach the question

of enforceability, having concluded that BDO, in any event, had waived its right to

arbitrate. We have now rejected that basis for the trial court’s ruling, though Jia-

Sobota is correct that we nonetheless have discretion to affirm the trial court’s

judgment on an alternative ground, so long as there would be “no procedural

unfairness” in doing so. See Jaiyeola v. District of Columbia, 40 A.3d 356, 372

(D.C. 2012) (explaining there may be no procedural unfairness where “the opposing

party had notice of the ground upon which affirmance is proposed, as well as an

opportunity to make an appropriate factual and legal presentation with respect

thereto” in the trial court (quoting Franco v. District of Columbia, 3 A.3d 300, 307

(D.C. 2010))). We decline to exercise our discretion to consider this alternative

ground for affirmance, and instead leave it to the trial court to address it in the first

instance.

Animating our decision not to resolve the question of enforceability is the fact

that there is virtually no evidentiary record or factual findings on issues that might
 24

inform the “strongly fact-dependent inquiry” into unconscionability. 11 Keeton v.

Wells Fargo Corp., 987 A.2d 1118, 1121 (D.C. 2010). “[A]ny evaluation of

unconscionability is tied so closely to the facts of a particular case that we are not in

a position to say, on the basis of the limited pleadings before us, whether this

particular contract [provision] is unconscionable.” Bennett v. Fun & Fitness of

Silver Hill, Inc., 434 A.2d 476, 480 (D.C. 1981). We therefore remand for the trial

court to address the arbitration clause’s enforceability in the first instance.

11
BDO argues that, under the partnership agreement’s choice-of-law clause,
New York rather than the District law governs the question of enforceability. See
King Carpentry, Inc. v. 1345 K St. SE, LLC, 262 A.3d 1105, 1110 n.3 (D.C. 2021)
(choice-of-law provisions are “generally understood to incorporate [] substantive
law”); Parker v. K & L Gates, LLP, 76 A.3d 859, 870 (D.C. 2013) (holding that a
procedural rule does not “directly determine the enforceability of [an] arbitration
clause”). Assuming that is correct, and it is unclear the extent to which that is a
contested point, New York law is in accord that questions of unconscionability are
often fact-intensive. See, e.g., Lawrence v. Miller, 901 N.E.2d 1268, 1272-73 (N.Y.
2008) (“[W]e have not been presented with facts . . . to evaluate the agreement’s
unconscionability.”); Simar Holding Corp. v. GSC, 928 N.Y.S.2d 592, 595 (N.Y.
App. Div. 2011) (“Where there is doubt as to whether a contract is fraught with
elements of unconscionability, there must be a hearing where the parties have an
opportunity to present evidence with regard to the circumstances of the signing of
the contract, and the disputed terms’ setting, purpose and effect.” (quoting
Davidovits v. De Jesus Realty Corp., 474 N.Y.S.2d 808 (N.Y. App. Div. 1984))).
 25

V.

We reverse the trial court’s ruling that BDO waived its right to enforce the

arbitration clause in its partnership agreement with Jia-Sobota, and remand the case

for further proceedings. We also dismiss the appeal from the trial court’s November

9, 2020, order to show cause.

So ordered.

DEAHL, Associate Judge, concurring: I am in full agreement with my

colleagues that the prudent course is to remand the question of whether the

arbitration clause is unenforceable. I write separately to highlight several factors

and precedents that I believe the trial court ought to take into its consideration of Jia-

Sobota’s unconscionability argument.

First, I want to highlight how extraordinarily oppressive this arbitration clause

is when applied to a former partner like Jia-Sobota. This speaks to the clause’s

substantive unconscionability, which concerns when contractual terms are

unreasonably favorable to one party. Simon v. Smith, 273 A.3d 321, 330 (D.C.

2022). BDO’s complaint alleges that Jia-Sobota “engaged in a calculated and blatant

scheme to steal . . . a $40 million business,” and, through arbitration, BDO seeks to
 26

have five of its current partners sit in judgment of its multi-million dollar claim

against a person who is now its direct competitor. Those partners would clearly have

direct economic interests in the arbitration’s outcome, and would effectively be

sitting in judgment over their own case against an adversary. Even under the New

York law that BDO maintains applies to the question of unconscionability, the

general right of parties to contract for the arbitrator of their choice is not without its

limits:

A well-recognized principle of ‘natural justice’ is that a
man may not be a judge in his own cause. Irrespective of
any proof of actual bias or prejudice, the law presumes that
a party to a dispute cannot have that disinterestedness and
impartiality necessary to act in a judicial or quasi-judicial
capacity regarding that controversy.

Cross & Brown Co. v. Nelson, 167 N.Y.S.2d 573, 575 (N.Y. App. Div. 1957); see

also In re City of Rochester, 101 N.E. 875, 876 (N.Y. 1913) (“[W]herever tribunals

of justice have existed all men have agreed that a judge shall never have the power

to decide where he is himself a party. . . . So vital is deemed the observance of this

principle that it has been held that a judge disqualified [thereunder] cannot act even

with the consent of the parties interested, because the law was not designed merely

for the protection of the parties to the suit, but for the general interests of justice.”).
 27

An arbitration provision that names an arbitrator who is a “party to a contract,

or someone so identified with the party as to be in fact, even though not in name, the

party” is “illusory” and unenforceable under New York law. Cross & Brown, 167

N.Y.S.2d at 576; see also id. at 575 (further describing this as an “absolute

disqualification”). New York courts have extended this rule to a situation in which

an arbitration clause calls for a panel consisting entirely of members of a corporate

party’s board of directors. See id. at 575-76 (“We brush aside any metaphysical

subtleties about corporate personality and view the agreement as one in which one

of the parties is named as arbitrator. Unless we close our eyes to realities, the

agreement here becomes, not a contract to arbitrate, but an engagement to

capitulate.”).

It is true that, “[a]s a general matter, under New York law, unconscionability

requires a showing that a contract is both procedurally and substantively

unconscionable when made.” Brower v. Gateway 2000, Inc., 676 N.Y.S.2d 569, 573

(N.Y. App. Div. 1998) (emphasis added and quotation marks omitted). That said,

in some “exceptional” cases, a provision may be unconscionable based on

substantive unconscionability alone. Gillman v. Chase Manhattan Bank, N.A., 534

N.E.2d 824, 829 (N.Y. 1988); see also Urban Invs., Inc. v. Branham, 464 A.2d 93,

99 (D.C. 1983) (“[I]n an egregious situation,” a showing of “one or the other may
 28

suffice.”). Where the terms of a provision—given their “context, their purpose, and

their effect”—are sufficiently “outrageous,” id., “the substantive element alone may

be sufficient to render the terms of [that] provision . . . unenforceable,” Brower, 676

N.Y.S.2d at 574. This provision at least skates up to the line of unconscionable on

substance alone, even absent any consideration of procedural unfairness in its

creation.

Second, there are several early indications of procedural unfairness in how

these parties came to agree to the arbitration clause, though I acknowledge the record

is too thin to firmly opine on that question. 12 The procedural component of

unconscionability focuses on the bargaining process itself, essentially asking

whether the term was agreed to via unfair surprise so that the complaining party

cannot be said to have meaningfully agreed to it. While Jia-Sobota is a sophisticated

party, cutting against any finding of procedural unconscionability, the substantive

and procedural components of unconscionability operate on a “sliding scale.” See

Simar Holding Corp. v. GSC, 928 N.Y.S.2d 592, 595 (N.Y. App. Div. 2011). The

12
BDO incorrectly asserts that Jia-Sobota “expressly disclaimed any effort”
to show procedural unconscionability in the trial court. He did no such thing. He
instead correctly noted that the substantive unconscionability of a clause might be
enough to render it unenforceable in egregious circumstances, supra, and argued that
this was one such case. While he did not make a targeted argument that procedural
unconscionability exists here, neither did he disclaim its existence.
 29

more substantively intolerable a provision is—and this one approaches an apex on

that front—the less courts will abide the lack of a meaningful choice in how the

parties arrived at it. “A contract that is 98 parts substantively unconscionable may

require only two parts of procedural unconscionability to render it unenforceable and

vice versa.” 1 White, Summers & Hillman, Uniform Commercial Code § 5:16 (6th

ed. 2021). In other words, “[t]he harsher the clause, the less ‘bargaining naughtiness’

that is required to show unconscionability.” Id. (citation omitted).

The strongest sign of procedural unconscionability here is that BDO seems to

have hidden the most oppressive aspect of this arbitration clause—its application to

former partners—in a 46-page, single-spaced, apparently standard-form contract of

the take-it-or-leave-it variety.13 While it is plain as day that the arbitration clause

13
This is not like the collective bargaining agreement that BDO highlights
and the Second Circuit considered in Nat’l Football League Mgmt. Council v. Nat’l
Football League Players Ass’n, which the court noted was “negotiated and refined
over time by the parties themselves so as to best reflect their priorities, expectations,
and experience.” 820 F.3d 527, 536 (2d Cir. 2016). That case concerned Tom
Brady’s challenge to his four-game suspension related to “Deflategate,” which NFL
Commissioner Roger Goodell arbitrated, ultimately upholding the suspension. Id.
at 531. It bears little resemblance to the case before us. For one, that case did not
even involve an unconscionability argument, which surely would have been dead on
arrival considering (1) that the NFL Players Association could be said to have
bargaining power roughly equal to the NFL Management Council, which cannot be
said of Jia-Sobota vis-à-vis BDO, (2) the chosen arbitrator, Roger Goodell, had no
apparent direct financial stake in the arbitration’s outcome (and seemingly acted
contrary to his indirect financial interests, sidelining one of the NFL’s biggest stars
 30

applies to disputes “between a Partner and the Partnership”—i.e., intra-partnership

disputes, where having an all-partner panel makes some sense—its application to

former partners can only be found two clauses earlier, amidst a page-long provision

that indicates “[t]he term ‘Partner’ herein includes ‘former Partner.’” For a clause

like this to be enforceable against former partners, it ought to be in large, bold and

underlined font, not lurking in diffuse component parts in a sprawling contract. On

the other hand, the record is scant on other questions that would inform a procedural

unconscionability inquiry: for all we know, Jia-Sobota had sat on one of BDO’s

arbitral panels himself, was specifically warned of this clause before agreeing to it,

or knew full-well of its application to former partners through office lore. I cannot

say on this record, but the early indications are there are at least two parts procedural

unconscionability here sufficient to nudge the 98 parts substantive unconscionability

over the line of unenforceability.

Third, a number of cases have considered the enforceability of BDO’s

arbitration clause, and while the results have been mixed, the cases ruling that it is

unenforceable seem to have the better of the argument. Both Jia-Sobota and BDO

for a stretch), and (3) it was truly an intra-league dispute, with Tom Brady still an
active player, so it does not resemble BDO’s partners sitting in judgment of a dispute
with a former partner and direct competitor.
 31

point to unpublished opinions of New York trial courts. Jia-Sobota cites to Romer

v. BDO Seidman, No. 1995-7807 (N.Y. Sup. Ct. Feb. 9, 1996) (unpublished), 14

where the court found unenforceable an arbitration clause that set an arbitral panel

consisting entirely of BDO partners. The Romer court reasoned that, because BDO’s

partners had “a direct financial interest in the outcome,” the clause designating them

as the sole arbitrators could not be enforced because the panel would be “so

identified with the party as to be in fact, even though not in name, the party.” Id.

(quoting Cross & Brown, 167 N.Y.S.2d at 576). Other courts applying New York

law have reached the same conclusion in cases concerning iterations of this same

arbitration clause. See Buhrer v. BDO Seidman, LLP, No. 022190C, 2003 WL

22049503, at *4 (Mass. Super. Ct. July 7, 2003) (concluding BDO’s arbitration

clause “is offensive to basic notions of fairness”); BDO Seidman v. Miller, 949

S.W.2d 858, 861 (Tex. App. 1997) (“the agreement to arbitrate is invalid on its

face”). 15

14
Romer was provided to the trial court as an exhibit, and it is part of the
record before us, though it does not appear to be readily available through any online
database.
15
BDO’s arbitration clause has changed slightly over time. Buhrer concerned
a clause, like the one we confront here, where two members of the arbitral panel
would be members of BDO’s board of directors and three would be partners outside
of the board. 2003 WL 22049503, at *3. Romer concerned a provision where two
members of the arbitral panel would come from BDO’s “Policy Group”—query if
that is some predecessor or close cousin to the board of directors—and three would
 32

BDO counters with BDO Seidman, LLP v. Bloom, 799 N.Y.S.2d 159 (N.Y.

Sup. Ct. 2004) (unpublished), where the court determined that an arbitral panel

consisting of two board members and three other partners was enforceable, even if

the individual arbitrators had some financial stake in the proceedings. Id. at *8. The

Bloom court focused not on “disinterestedness and impartiality,” Cross & Brown,

167 N.Y.S.2d at 575, 16 but on agency—reasoning that the arbitrators were not acting

as judges to their own dispute because “the five members that compose the [arbitral]

panel acting as individuals, or in unison, do not have the ability to act for the

be partners outside of that group. And Miller involved three board members as
arbitrators and two partners outside of the board. 949 S.W.2d at 861. None of those
cases attached significance to those finer points of the arbitral panel’s composition,
as between board members and partners outside of the board, and any such
distinction (as BDO tries to draw) strikes me as illusory.
16
BDO argues that Cross & Brown was abrogated by Westinghouse Elec.
Corp. v. N.Y.C. Transit Auth., 623 N.E.2d 531, 534 (N.Y. 1993), and cites to two
further cases in support of that argument, see BDO Seidman, LLP v. Bee, 970 So.2d
869, 875-77 (Fla. Dist. Ct. App. 2007); Hottle v. BDO Seidman, LLP, 846 A.2d 862,
875-76 (Conn. 2004). I disagree. Westinghouse concerned whether a mere
employee of one contracting party could serve as an arbitrator, but the employee /
employer relationship is not akin to the partner / partnership relationship. Only the
latter relationship involves a direct financial interest in the outcome of the
arbitration, so I find Westinghouse to be far afield from whether those with a direct
financial stake in one party’s finances can serve as the sole arbitrators to a dispute.
Both Buhrer and Miller likewise persuasively rejected BDO’s argument that
Westinghouse effectively jettisoned Cross & Brown. 2003 WL 22049503, at *3 n.6;
949 S.W.2d at 861.
 33

partnership in the manner the defendant complains of that gives rise to his

counterclaims.” Bloom, 799 N.Y.S.2d at *5.

I find Bloom’s reasoning wholly unpersuasive, and Romer’s a far more

convincing application of New York law. The axiom articulated in Cross &

Brown—“that a man may not be a judge in his own cause”—is grounded in the

principle that the parties to a dispute are entitled to an adjudicator “who is not biased

or prejudiced in favor of or against either side to the controversy.” 167 N.Y.S.2d at

575 (quotation omitted). It defies common sense to presume that an individual with

a direct and substantial financial stake in the outcome of a controversy is not

operating as “a judge in his own cause” when they might directly line their pockets

through their decision. Where the underlying question is bias, there is no reason that

arbitrators with a direct and substantial financial stake in the outcome of an

arbitration should be exempted from scrutiny simply because they lack authority to

make decisions on behalf of the party they are aligned with.

In sum, I would frame the substantive unconscionability question for the trial

court as whether the contemplated arbitral panel here is “so identified with [BDO]

as to be in fact . . . the party.” Cross & Brown, 167 N.Y.S.2d at 576. If so, then

perhaps that is enough to find this arbitration clause unconscionable based on its
 34

substance alone. And, at the very least, it would be enough to find the arbitration

clause unconscionable if, as it appears at first blush, the procedure by which Jia-

Sobota came to agree to it gives no assurance that his was a genuine and informed

assent to the clause.