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DISTRICT OF COLUMBIA COURT OF APPEALS

No. 09-CV-893

COLIN ANDREW, APPELLANT,

V.

AMERICAN IMPORT CENTER, APPELLEE,

AND

DISTRICT OF COLUMBIA, INTERVENOR.

Appeal from the Superior Court of the

District of Columbia

(CAB-8450-08)

(Hon. Anita M. Josey-Herring, Trial Judge)

(Argued June 5, 2014 Decided February 26, 2015) 

Thomas C. Willcox for appellant.

James C. McKay, Jr., with whom Irvin B. Nathan, then-Attorney General for 

the District of Columbia, Todd S. Kim, Solicitor General, and Loren L. Alikhan, 

Deputy Solicitor General, were on the brief, for intervenor.

V. David Zvenyach, with whom John Hoellen was on the brief, for amicus 

curiae District of Columbia Council.

David R. Mahdavi filed a Statement in Lieu of Brief for appellee.

Before WASHINGTON, Chief Judge, THOMPSON, Associate Judge, and 

NEBEKER, Senior Judge.
2

WASHINGTON, Chief Judge: Appellant Colin Andrew brought suit in the 

Superior Court against American Import Center (“AIC”) and others, alleging 

breach of contract, fraud, and violations of the Consumer Protection Procedures 

Act arising out of his purchase of a car from AIC. The Superior Court stayed 

appellant’s case and ordered the parties to proceed to arbitration pursuant to an 

arbitration agreement that was signed as part of the purchase transaction. Andrew 

appealed. The question before this court is whether we have jurisdiction to hear 

an appeal from an order compelling a consumer to arbitrate with a commercial 

entity based on an arbitration clause in an adhesion contract. For the following 

reasons, we hold that such an order is interlocutorily appealable pursuant to D.C. 

Code § 11-721 (a)(2)(A) (2012 Repl.). Further, we find that appellant raised a 

triable issue of fact as to the unconscionability of the arbitration agreement and we 

therefore remand the case to the trial court to hold an evidentiary hearing and make 

factual findings concerning unconscionability.

I. Facts

Appellant Colin Andrew brought suit against AIC, Tehran Ghasri 

(“Ghasri”), and Wells Fargo Auto Finance (“Wells Fargo”), alleging fraud, breach 

of contract, and violations of the District of Columbia Consumer Protection 
3

Procedures Act, D.C. Code § 28-3901 et seq. (2012 Repl.). Appellant claimed 

that in December of 2006, Ghasri, an AIC salesman, requested that he help a 

friend, Baback Fadavi (“Fadavi”) purchase a vehicle. Fadavi was 90% blind, such 

that he could not obtain a driver’s license or purchase a car, but he needed one so 

that his mother could drive him around. Appellant alleged that Ghasri asked him 

to guarantee the purchase of the vehicle, which Mrs. Fadavi would own. In 

reality, the contract that appellant signed listed him as the purchaser rather than the 

guarantor of the vehicle. The vehicle was delivered to Mrs. Fadavi, but the title 

was in appellant’s name. The vehicle was later repossessed and sold, and 

appellant filed his suit after a deficiency of $8,817.50 was assessed against him.

AIC and Wells Fargo moved to dismiss appellant’s complaint and compel 

arbitration because there was an arbitration clause in the finance contract he had 

signed. Andrew moved for discovery on the issue of whether the arbitration 

agreement was unconscionable. The trial court denied AIC’s and Wells Fargo’s 

motion to dismiss but granted their motion to compel arbitration, staying the 

proceedings in Superior Court pending completion of arbitration.1 The trial court 

rejected appellant’s unconscionability argument, concluding that he had not 

 

1

 Appellant subsequently stipulated to the dismissal of Wells Fargo from 

the case. 
4

presented a triable issue of material fact. Appellant timely appealed. This court 

issued an order directing both parties to file briefs addressing whether we had 

jurisdiction to hear this appeal given first that, in the past, we have held that orders 

to compel arbitration are not appealable, and second, that it was not clear that the 

D.C. Council had the authority to pass D.C. Code § 16-4427 purporting to make 

such orders appealable.

II. Jurisdictional Analysis

In 1970, Congress enacted the District of Columbia Court Reorganization 

Act of 1970, Pub. L. No. 91-358, Title I, 84 Stat. 473 (1970), D.C. Code § 11-101 

et seq. (2012 Repl.), establishing this court as “[t]he highest court of the District of 

Columbia” and providing that:

The District of Columbia Court of Appeals has 

jurisdiction of appeals from—

(1) all final orders and judgments of the 

Superior Court of the District of Columbia; [and]

(2) interlocutory orders of the Superior Court of 

the District of Columbia—

(A) granting, continuing, modifying, refusing, 

or dissolving or refusing to dissolve or modify 

injunctions; . . .

D.C. Code § 11-721 (a) (2012 Repl.). Congress also passed the Home Rule Act, 
5

D.C. Code § 1-201.01 et seq. (2012 Repl.), with the intent of giving the D.C. 

Council broad authority to legislate upon “all rightful subjects of legislation within 

the District,” § 1-203.02, but limiting the Council’s ability to pass legislation that 

affects this court’s jurisdiction:

(a) The Council shall have no authority to pass any act 

contrary to the provisions of this chapter except as 

specifically provided in this chapter, or to . . .

. . . . 

(4) Enact any act, resolution, or rule with respect 

to any provision of Title 11 (relating to 

organization and jurisdiction of the District of 

Columbia courts).

§ 1-206.02 (a)(4).

2

 Still, this court has repeatedly held that § 602 (a)(4) must be 

construed as a narrow exception to the Council’s otherwise broad legislative power

“so as not to thwart the paramount purpose of the [Home Rule Act], namely, to 

grant the inhabitants of the District of Columbia powers of local self-government.” 

Bergman v. District of Columbia, 986 A.2d 1208, 1226 (D.C. 2010).

Subsequently, in 1977, the D.C. Council enacted the District of Columbia 

 

2

 D.C. Code § 1-206.02 (a)(4) is referred to as “§ 602 (a)(4) of the Home 

Rule Act” throughout.
6

Uniform Arbitration Act (“UAA”), D.C. Code § 16-4301 et seq. Relevant to the 

instant case was a section of the UAA that outlined whether (and which) arbitration 

orders could be appealed to this court. Section 16-4317 of the UAA read in 

relevant part:

(a) For purposes of writing an appeal, the following 

orders shall be deemed final:

(1) An order denying an application to compel 

arbitration . . .

D.C. Code 1978 Supp., tit. 16 app., s 18. Then, in American Fed’n of Gov’t Emps.

v. Koczak, 439 A.2d 478, 480 (D.C. 1981), this court examined this section of the 

UAA and concluded that as opposed to an order denying a motion to compel 

arbitration, an order granting a motion to compel arbitration was not appealable, 

for two reasons. First, the language of the UAA included orders denying a motion 

to compel arbitration on the list of final, appealable orders but did not similarly 

include orders to compel arbitration on that list. Id. Second, the omission of 

orders compelling arbitration from that list made sense given that an order to 

compel arbitration would not be considered a final order like an order denying a 

motion to compel arbitration because the former “does not dispose of the entire 

case on the merits. Rather, the parties’ rights and obligations are finally 

determined only after arbitration is had. . . .” Id. 
7

Finally, in 2007, the Council replaced the UAA with the District of 

Columbia Revised Uniform Arbitration Act (“RUAA”), D.C. Code § 16-4401 et 

seq. (2012). The RUAA also contains a section that outlines when an appeal may 

be taken. § 16-4427. That section reads, in relevant part:

(a) An appeal may be taken from:

(1) An order denying or granting a motion to 

compel arbitration; . . .

§ 16-4427 (a)(1). The question currently before the court is whether this section of 

the RUAA violates § 602 (a)(4) of the Home Rule Act by impermissibly expanding 

this court’s jurisdiction to allow parties to appeal from an order granting a motion 

to compel arbitration, a type of an order we have previously determined not to be 

appealable.

A. An order staying litigation and compelling the parties to 

arbitrate is not a final order under D.C. Code § 11-721 

(a)(1).

This court has recognized the Supreme Court’s “well-developed and 

long-standing” definition of a final order, which is “a decision that ends the 

litigation on the merits and leaves nothing more for the court to do but execute the 

judgment.” Green Tree Fin. Corp. v. Randolph, 531 U.S. 79, 86 (2000) (internal 
8

quotation marks omitted); Crown Oil & Wax Co. v. Safeco Ins. Co., 429 A.2d 

1376, 1379 (D.C. 1981) (explaining that as a “general rule . . . an order is final for 

purposes of appeal . . . [when] it disposes of the entire case on the merits”). This 

court has specifically and repeatedly stated in several cases that an order granting a 

motion to compel arbitration and stay proceedings is not a final order.

3

 Although

 

3

 See Koczak, 439 A.2d at 480 (internal quotation marks, citations, and 

footnotes omitted) (explaining that “the Council’s omission of an order to compel 

arbitration from the list of orders deemed to be final set forth in [§ 16-4317 of the 

UAA] is consistent with the general rule that . . . an order is final for purposes of 

appeal . . . [when] it disposes of the entire case on the merits. An order to compel 

arbitration does not dispose of the entire case on the merits. Rather, the parties’ 

rights and obligations are finally determined only after arbitration is had, or, if an 

arbitrator’s award is challenged, after a court enters judgment upholding, 

modifying, or vacating the arbitrator’s award”); see also Judith v. Graphic 

Commc’ns Int’l Union, 727 A.2d 890, 891 (D.C. 1999) (citations omitted) (holding 

that where the trial court had referred the parties to arbitration but it was 

ambiguous as to whether the court had also dismissed the underlying case, 

dismissal and referral to arbitration should really be construed as an order to stay 

litigation pending arbitration, which under Koczak and Umana was not a final, 

appealable order); Umana v. Swidler & Berlin, Chartered, 669 A.2d 717, 721 

(D.C. 1995) (citing Koczak, 439 A.2d at 480) (concluding that this court lacked

jurisdiction to hear an appeal from an order compelling Umana to arbitrate his 

claims because that order was not a final order under § 11-721 (a)(1), because it 

was not an appealable interlocutory order under Brandon because it did not 

frustrate (in contrast with facilitate) arbitration, and because § 16-4317 of the UAA 

did not attempt to make orders compelling arbitration final and appealable); 

Hercules & Co. v. Shama Rest. Corp., 566 A.2d 31, 35 n.4 (D.C. 1989) (citing 

Brandon v. Hines, 439 A.2d 496, 504 (D.C. 1981)) (characterizing the fact that 

“Hercules [was not] claim[ing] that the referral to arbitration [wa]s a final 

judgment” as a “correct assessment”). But see Parker v. K & L Gates, LLP, 76 

A.3d 859 n.3 (D.C. 2013) (citations omitted) (holding that an order compelling 

arbitration in an independent proceeding is appealable as a final order because in 

that context, the order compelling arbitration resolves the sole issue before the 

(continued . . .)
9

these cases arose in the context of the UAA rather than the RUAA, in each case the 

court’s opinion made clear that the exclusion of orders compelling arbitration from 

the list of final appealable orders in § 16-4317 was consistent with our case law 

interpreting § 11-721 (a)(1), and that we did not consider such orders final for 

purposes of appeal. 

Similarly, in the instant case the order granting the motion to compel 

arbitration is not a final order and therefore is not appealable as such. As the 

Supreme Court explained in Green Tree Financial, while an order to compel 

arbitration entered in conjunction with a dismissal of the case on the merits results 

in a final order for purposes of appellate review, 531 U.S. at 87, “[h]ad the District 

Court entered a stay instead of a dismissal . . . that order would not be appealable.” 

Id. at 87, n.2. This court has followed the Supreme Court’s lead, holding that it is 

only “where a trial court dismisse[s] a case with prejudice in addition to 

compelling arbitration . . . [that] such an order is unambiguously final [because] 

. . . the trial court has effectively prevented a plaintiff from litigating the issue in 

the future.” Keeton v. Wells Fargo Corp., 987 A.2d 1118, 1121 (D.C. 2010) 

(footnotes omitted). Thus, where, as here, the trial court granted appellees’

 

(continued . . .)

court).
10

motion to compel arbitration and stayed the case pending resolution of the 

arbitration, the order is not a final order and therefore, is not appealable under 

§ 11-721 (a)(1). 

B. As a general matter, an order staying litigation and 

compelling arbitration may not be appealed

interlocutorily. 

The District’s main argument in this case is that an order compelling a party

to arbitrate is injunctive in nature, and therefore, can be appealed interlocutorily. 

An injunction is “an equitable remedy, consisting of a command by the court, 

through an order or writ, that the party to whom it is directed do, or refrain from 

doing, some specified act.” McQueen v. Lustine Realty Co., 547 A.2d 172, 176 

(D.C. 1988) (en banc). In Carson v. American Brands, Inc., 450 U.S. 79, 84 

(1981), the Supreme Court held that an order, though not expressly labeled an 

injunction, might still have the effect of an injunction and could thus be treated as 

such if it 1) has the “practical effect” of an injunction and 2) the litigants would 

suffer a “serious, perhaps irreparable consequence” from the trial court’s order 

such that it could only be “effectually challenged” by immediate appeal.4

 

4

 The District’s first argument in its brief on this point is that the court need 

not apply the Carson test in order to conclude that an order granting a motion to 

stay litigation pending arbitration is an order respecting injunctions that is therefore 

(continued . . .)
11

This court adopted the so-called Carson test in Brandon v. Hines, 439 A.2d 

496 (D.C. 1981), in which a building contractor brought suit for breach of contract 

against the defendant whose property he had agreed to renovate. Id. at 497. 

Because the contract contained an arbitration clause, the trial court stayed the case 

and ordered the parties to arbitrate. Id. After the arbitrators returned an award in 

appellant’s favor, the trial court denied appellant’s motion to confirm the award as 

a judgment, vacated the award (because the arbitration panel had decided the case 

out of time), and ordered the parties to proceed to trial. Id. The question in the 

case (which is only indirectly relevant to the instant case) was whether the trial 

court’s order denying the motion to confirm the award, vacating the award, and 

directing the parties to trial was an appealable order. Id.

To place its analysis in perspective, the Brandon court looked first to federal 

case law concerning the appealability of orders relating to arbitration under 28 

 

(continued . . .)

appealable interlocutorily. The District’s argument is that though it is not labeled 

as such, this type of order is expressly injunctive in nature. However, the only 

case from this jurisdiction that the District cites to support the proposition that 

Carson need not be applied is McQueen, 547 A.2d at 172, a case in which this 

court explicitly applied the Carson test to hold that pretrial protective orders in 

Landlord-Tenant Court satisfy that test and are therefore immediately appealable 

under § 11-721 (a)(2)(A). We are not aware of any case in which this court has 

held an order to be injunctive without applying the Carson test (or its predecessor 

tests.).
12

U.S.C. § 1292, the federal analogue to D.C. Code § 11-721. Id. at 503. The

court examined federal case law in this area from the late-1970s to the early 1980s, 

focusing heavily on the Supreme Court’s then-recent decision in Carson. Id. at 

503-06. In applying the Carson test to the context of a stay pending arbitration, 

this court made the following observations, albeit in dicta: First, that both an 

order denying a stay and an order granting a stay of litigation pending arbitration 

have the “practical effect” of an injunction by either refusing to halt court 

proceedings or halting court proceedings pending arbitration, respectively. Id. at 

506. And, second, that “denials—but not grants—of stays of litigation pending 

arbitration are appealable interlocutory orders, since only orders that frustrate (in 

contrast with facilitate) arbitration impose a sufficiently serious injury to justify an 

immediate appeal.” Id. at 507. Specifically, the court reasoned that an order 

granting a motion to stay court proceedings pending arbitration was not appealable 

on an interlocutory basis for three reasons: 1) At least in principle, the party 

resisting arbitration agreed to arbitration at some previous time; 2) an arbitration 

award is not self-executing, such that a successful party must still go to court for 

final judgment to be entered at which point the party opposed to arbitration can 

challenge the enforcement of the award as a judgment; and 3) allowing a party to 

appeal from a stay of litigation pending arbitration would only increase the time 

and expense necessary to resolve the dispute, which undermines the entire purpose 
13

of arbitration. Id.

Months after Brandon was decided this court decided Koczak, which 

contained dicta that conflicted with that of Brandon. See Koczak, 439 A.2d at 480 

n.7 (emphasis added) (noting that the UAA prohibited the court from hearing an 

appeal of an order granting a motion to compel arbitration, but reasoning “in the 

absence of the [UAA], certain orders affecting arbitration could be viewed as 

orders respecting injunctions, and thus appealable interlocutorily”). Thus, after 

Koczak was decided there was dicta from this court suggesting that an order 

granting a motion to compel arbitration was not injunctive in nature (Brandon) and 

therefore unappealable, as well as dicta indicating that an order granting a motion 

to compel arbitration could potentially be considered an order respecting 

injunctions (Koczak) which therefore could be appealed interlocutorily.

Subsequently, in 1988, the Supreme Court overruled much of the federal 

case law on which Brandon was based. In Gulfstream Aerospace Corp. v. 

Mayacamas Corp., 485 U.S. 271, 287 (1988), Gulfstream sued Mayacamas for 

breach of contract in state court for failing to make payments on an aircraft that it 

had commissioned Gulfstream to build. Id. at 272-73. Without seeking to 

remove the case to federal court, Mayacamas filed its own action for breach of the 
14

same contract against Gulfstream in federal court. Id. at 273. Gulfstream moved 

for a stay or dismissal of the federal court action pending resolution of its state 

case, but the court denied its motion. Id. The question before the Supreme Court 

was whether Gulfstream could appeal from the denial of the motion to stay or 

dismiss the case pending the outcome of the state case.

The Supreme Court reviewed the applicable law at the time, the so-called 

Enelow-Ettelson rule, 5 which held that orders granting or denying stays of 

proceedings at law on equitable grounds were automatically appealable as 

interlocutory orders. Gulfstream Aerospace Corp., 485 U.S. at 288. The parties 

agreed that the breach of contract cause of action at issue in the case was 

traditionally brought at law, but disagreed as to “whether the stay of an action 

pending the resolution of similar proceedings in a state court is equitable in the 

requisite sense.” Id. at 281. Rather than answer that question, however, the 

Supreme Court recognized the ever-increasing criticism of the Enelow-Ettelson

rule and decided to overrule it. Id. at 287. Thus, the Court held that an order 

denying a motion to stay or dismiss an action when a similar suit is pending in 

state court was not automatically immediately appealable as an interlocutory order. 

 

5

 This rule came from the cases of Enelow v. New York Life Ins. Co., 293 

U.S. 379 (1935), and Ettelson v. Metropolitan Life Ins. Co., 317 U.S. 188 (1942).
15

Id. However, relevant to the instant case, the Court also stated:

This holding will not prevent interlocutory review of 

district court orders when such review is truly needed. 

Section 1292 (a)(1) will, of course, continue to provide 

appellate jurisdiction over orders that have the practical 

effect of granting or denying injunctions and have 

“serious, perhaps irreparable, consequence.”

Id. at 287-88 (quoting Carson, 450 U.S. at 84) (internal quotation marks omitted). 

Subsequently, federal courts have applied Gulfstream to orders staying or refusing 

to stay litigation pending arbitration and have concluded that Gulfstream prohibits

an appeal from either type of order.6

Despite Gulfstream and its progeny, in 1989, this court extended and 

formally adopted much of the dicta in Brandon in Hercules.

7

 The court 

recognized that had Brandon been decided post-Gulfstream, the outcome would 

 

6

 See Hercules, 566 A.2d at 37 nn.13 & 14 (citing federal cases).

7

 Neither the District nor the Council cite to this case in their briefs. The 

District does cite to a case involving the same plaintiff, Hercules & Company v.

Beltway Carpet Service, 592 A.2d 1069 (D.C. 1991). In that case, this court held 

that a motion to dismiss on the basis that the parties had agreed to arbitration must 

be construed as a motion to stay and compel arbitration, and therefore, the denial 

of a motion to dismiss on the basis that the parties agreed to arbitration is 

immediately appealable as an order denying a motion to compel arbitration under 

the UAA. Id. at 1072.
16

likely have been different because had the court followed federal case law and

applied Gulfstream, it would likely have concluded that neither an order granting 

nor an order denying a stay pending arbitration was immediately appealable.

Hercules, 566 A.2d at 37. Still, the division recognized that Gulfstream had not 

overruled Brandon, and that the court was bound by Brandon. Id. at 38. Thus, in

Hercules, we explained:

Although the appealability of a grant of a stay was not 

before the court, there is support in Brandon, albeit in 

dictum, for the conclusion that [the trial court’s] order 

[granting a stay pending arbitration] is not subject to 

review pursuant to § 11-721 (a)(2)(A). . . . [W]e follow 

the dictum in Brandon, which is consistent with 

Gulfstream, and dismiss this portion of the appeal.

Id. at 38-39. 

Thus, Hercules stands for the proposition that in general, a party cannot 

appeal from an order compelling arbitration. 
17

C. An order staying litigation and compelling a consumer 

to arbitrate with a commercial entity based on an 

arbitration clause contained in a contract of adhesion 

meets the Carson test and thus is injunctive in nature 

and can be appealed interlocutorily.

However, this court has never considered whether an order compelling 

arbitration is appealable in the specific context at issue here, that is, where a 

consumer is compelled to arbitrate with a commercial entity pursuant to an 

arbitration clause contained in a (purported) contract of adhesion.

8

 The narrow 

question before us is whether an order staying litigation and compelling a 

consumer to arbitrate pursuant to an arbitration clause contained in a form contract 

is appealable as an interlocutory order under § 11-721 (a)(2)(A). 

Importantly, in passing the RUAA the D.C. Council explicitly conferred a 

right to appeal from an order granting a motion to compel arbitration,

9

and the 

 

8

 “A contract of adhesion is defined generally as one imposed upon a 

powerless party, usually a consumer, who has no real choice but to accede to its 

terms.” Association of Am. Med. Colleges v. Princeton Review, Inc., 332 F. Supp. 

2d 11, 16 (D.D.C. 2004) (internal quotation marks and citation omitted); see also 

ADHESION CONTRACT, Black’s Law Dictionary (9th ed. 2009) (“A 

standard-form contract prepared by one party, to be signed by another party in a 

weaker position, usu. a consumer, who adheres to the contract with little choice 

about the terms.”).

9

 Compare § 16-4317 (a)(1) [the UAA] (“For purposes of writing an 

appeal, the following orders shall be deemed final: [] An order denying an 

(continued . . .)
18

legislative history suggests that this step was undertaken in an effort to provide 

consumers more protection where arbitration was entered into with a commercial 

entity by way of an adhesion contract. See infra at 19. Further, this court has 

recognized the potential for widespread use of adhesion contracts containing 

arbitration agreements to deprive consumers of any meaningful choice, which 

raises serious questions about the fairness of enforcing the terms of those contracts 

against consumers. See infra at 19-20. Thus, this panel, which remains bound by

Hercules, but is called upon to rule in the wake of the RUAA, must now consider 

for the first time whether compelling a consumer to arbitrate a dispute with a 

commercial entity pursuant to an arbitration clause contained in a contract of 

adhesion has the practical effect of an injunction under Carson, such that we have 

jurisdiction to hear an interlocutory appeal of such an order pursuant to § 11-721 

(a)(2)(A).

We are satisfied that applying the Carson test, an order compelling 

arbitration in the context of a consumer adhesion contract is injunctive in nature. 

First, as the court noted in Brandon, granting a stay pending arbitration does have 

 

(continued . . .)

application to compel arbitration . . . .”) with § 16-4427 (a)(1) [the RUAA] (“An 

appeal may be taken from: [] An order denying or granting an order to compel 

arbitration; . . . .”).
19

the “practical effect” of enjoining the party opposing arbitration, in that it halts 

litigation and orders the parties to undergo arbitration. 439 A.2d at 506. We see 

no reason why the changes to our law since Brandon should affect that conclusion. 

With respect to the second prong of the Carson test, today both the D.C. 

Council and this court recognize that there has been a significant increase in the 

use of arbitration clauses in consumer contracts of adhesion since Brandon and 

Hercules and that such clauses are being used to the detriment of consumers. 

Indeed, the D.C. Council’s concern that consumers were being taken advantage of 

by being forced to submit to arbitration based on the terms of an adhesion contract 

entered into with a commercial entity was a motivating factor behind the decision 

to add several consumer-friendly provisions into the RUAA. See COMM. ON PUB.

SAFETY & THE JUDICIARY, REP. ON BILL 17-50, at 2 (D.C. 2007) (explaining that 

“many businesses have found that mandatory arbitration is advantageous in 

consumer contracts where the business controls the choice of arbitrators, and can 

afford the arbitration process more easily than can the consumer”); id. (including 

“several consumer friendly amendments” in the RUAA because “as the use of 

arbitration has increased, the view of many is that the arbitration process has been 

slanted in the favor of business over consumers”). Thus, though this court could 

not discern a particular significant injury suffered by a party opposing arbitration at 
20

the time Brandon and Hercules were decided, today the Council has developed a 

record that clearly recognizes that the injury suffered by a consumer who is 

compelled to arbitrate with a commercial entity pursuant to an arbitration clause in 

an adhesion contract is significant. 

This court has also recognized that the policy that overwhelmingly favors 

arbitration10 has been seriously called into question by the realization that all too 

often, arbitration agreements are included in the language of contracts of adhesion, 

which consumers must sign in order to make particular purchases. See, e.g., 

Keeton v. Wells Fargo Corp., 987 A.2d 1118, 1122 n.13 (D.C. 2010) (remanding 

for the trial court to hold an evidentiary hearing and make factual findings as to the 

unconscionability of the arbitration agreement, in particular with respect to 

appellant’s argument that she lacked meaningful choice because “[i]f every 

dealership in the region also imposes similar arbitration clauses in similar contracts 

of adhesion, their existence would not amount to reasonable choice. Indeed, 

according to our amicus, such clauses are nearly ubiquitous and it is not clear 

 

10

 See, e.g., Friend v. Friend, 609 A.2d 1137, 1139 (D.C. 1992) (citations 

omitted) (referencing “the well-established preference for arbitration when the 

parties have expressed a willingness to arbitrate. Federal and District of Columbia 

statutes “are in agreement on the issue of favoring arbitration when the parties have 

entered into a contract containing an arbitration clause”).
21

whether Ms. Keeton had access to another dealer who would not insist on a similar 

contract containing a similar arbitration clause”). Contracts of adhesion are not, 

of course, negotiable, such that consumers are often forced into agreeing to 

arbitrate any claims arising out of the consumer transaction, thus forfeiting the 

option to resort to the courts. See, e.g., Moore v. Waller, 930 A.2d 176, 182 (D.C. 

2007) (citations omitted) (to prove that a contract is an adhesion contract, the party 

challenging the contract must demonstrate that “the parties were greatly disparate 

in bargaining power, that there was no opportunity for negotiation and that the 

services could not be obtained elsewhere”). 

Further, like litigation, arbitration can be costly and time-consuming, and 

does not afford the consumer the same process as the courts. See generally

Christopher R. Drahozal, Arbitration Costs and Contingent Fee Contracts, 59

VAND. L. REV. 729 (2006). Finally, judicial review of arbitration 

agreements—including the substantive fairness of those agreements—is extremely 

limited, both at the trial court level as well as on appellate review. Lopata v.

Coyne, 735 A.2d 931, 940 (D.C. 1999) (citations omitted) (“Judicial review of an 

arbitrator’s decision is extremely limited, and a party seeking to set it aside has a 
22

heavy burden.”).

11

 Thus, we are satisfied that the current and frequent inclusion 

of arbitration clauses in consumer contracts of adhesion justifies our conclusion 

that a consumer compelled to arbitrate with a commercial entity pursuant to such a 

clause suffers significant injury within the meaning of Carson, such that an order 

compelling arbitration in this context operates as an order granting an injunction 

and necessitates our immediate, interlocutory review under § 11-721 (a)(2)(A). 

This is clearly a context in which, as the Supreme Court put it, interlocutory review 

is “truly needed.” Gulfstream, 485 U.S. at 287.

Finally, though today we choose not to forsake our precedent and follow the 

federal courts and the Gulfstream line of cases to hold that orders compelling 

arbitration are not appealable, we point out that our decision today is not 

incompatible with Gulfstream. Though the Supreme Court took the opportunity in 

that case to overrule the “unworkable . . . arbitrary . . . and unnecessary” 

Enelow-Ettelson rule that provided for automatic review of any order staying or 

denying a stay of “legal” proceedings on an equitable basis, Gulfstream, 485 U.S. 

at 287, the Court clearly intended that “[s]ection 1292 (a)(1) [the federal analogue 

to D.C. Code § 11-721 (a)(2)(A)] [would] continue to provide appellate 

 

11

 The potential grounds for setting aside an arbitration award are outlined 

by the statute, § 16-4423, which provides the very limited basis for vacating an 

(continued . . .)
23

jurisdiction over orders that grant or deny injunctions and orders that have the 

practical effect of granting or denying injunctions and have serious, perhaps 

irreparable, consequence.” Id. at 287-88 (internal quotation marks and citations 

omitted). For the reasons explained herein, we are satisfied that under

circumstances where a consumer is claiming that the arbitration clause in a 

contract of adhesion is unconscionable, the (alleged) injury is serious enough to 

meet the second prong of the Carson test and thus, we have jurisdiction to consider

an appeal under § 11-721 (a)(2)(A). We reserve judgment as to whether an appeal

of a ruling compelling arbitration that does not emanate from a challenge to an 

arbitration clause in a contract of adhesion might lie in some other circumstance or 

whether § 16-4427 as applied in other contexts might violate § 602 (a)(4) of the 

Home Rule Act.

III. Merits Analysis

Having concluded that we have jurisdiction to hear an interlocutory appeal 

from an order to compel arbitration and stay proceedings where the arbitration 

agreement appears in a contract of adhesion entered into by a consumer and a 

 

(continued . . .)

arbitration award.
24

commercial entity, we now consider whether the record in this case is one in which 

appellate review is appropriate under the test set out above. Appellant contends

that this court is required to remand the case for further proceedings as we did 

under similar facts in Keeton, because the trial court granted appellees’ motion to 

compel arbitration without holding an evidentiary hearing or providing the parties

an opportunity to develop the record to determine whether the arbitration 

agreement was unconscionable. We agree. Although the Keeton case involved a 

different procedural posture, 12 the factual similarities between Keeton and the 

present case convince us that this is a contract of adhesion and that appellant raised 

a triable issue of fact as to the unconscionability of the arbitration agreement. We 

see no appropriate basis for departing from that precedent in this case, and thus, we 

remand the case to the trial court to hold an evidentiary hearing and make factual 

findings as to the unconscionability of the arbitration agreement. See M.A.P. v. 

Ryan, 285 A.2d 310, 312 (D.C. 1971); D.C. Code § 17-306 (2012 Repl.) (“The 

District of Columbia Court of Appeals may . . . remand the cause and . . . require 

 

12

 The appeal in Keeton arose from the trial court’s dismissal of the 

complaint with prejudice while compelling arbitration, a ruling this court 

recognized was an “unambiguously final” order. 987 A.2d at 1121. In contrast, 

the trial court’s ruling in the present case granted appellees’ motion to compel 

arbitration but stayed the case pending resolution of the arbitration, 

which—although not a final order—may nonetheless be subject to this court’s 

jurisdiction as an interlocutory appeal where the arbitration agreement appears in a 

contract of adhesion, as explained in the jurisdictional analysis above. 
25

such further proceedings to be had, as is just in the circumstances.”). 

In Keeton, the appellant, Ms. Keeton, brought suit against Easterns Auto and 

Wells Fargo after she defaulted on a vehicle loan that had required her to make 

loan payments totaling more than twice the fair market value of the car. 987 A.2d 

at 1120. Appellees filed a motion to dismiss and compel arbitration, which the 

trial court granted, dismissing the case with prejudice. Id. at 1121. Not only was 

the contract at issue an adhesion contract, id. at 1119, but the appellant had alleged 

sufficient facts tending to show that the contract was both procedurally and 

substantively unconscionable. For example, Ms. Keeton argued that the 

arbitration agreement was procedurally unconscionable because she lacked 

meaningful choice in that she could not merely go to another dealership to obtain 

financing without signing an arbitration agreement, and substantively 

unconscionable because the terms of the arbitration agreement, which “reserv[ed] 

some litigation avenues to Easterns while entirely barring Ms. Keeton from 

seeking judicial action” were substantively unfair. Id. at 1122-23. Therefore, 

noting that it was well-settled in this jurisdiction that a determination on the issue 

of unconscionability “calls for a strongly fact-dependent inquiry” and “an 

expedited evidentiary hearing,” neither of which the trial court had conducted, we 

reversed and remanded the case with instructions that the trial court permit 
26

discovery and hold an evidentiary hearing as to unconscionability of the arbitration 

agreement. Id. at 1123. Specifically, we ordered that a record be developed with 

respect to: “the significance of the imbalance of power in arbitrator selection 

given Easterns’s status as a ‘repeat player’ in the arbitration system”; “the fact that 

the clause reserv[ed] some litigation avenues to Easterns while entirely barring Ms. 

Keeton from seeking judicial action”; and “the costs imposed on Ms. Keeton by 

the arbitration procedure and their impact on her ability to seek redress.” Id.

As in Keeton, there are sufficient facts on the record from which it can be

inferred that the contract in the present case was a contract of adhesion. In finding 

that the contract in Keeton was an adhesion contract, the court relied on the facts

that “Ms. Keeton signed a Buyer’s Order, a standardized-form contract with terms 

prepared in advance by Easterns.” Keeton, 987 A.2d at 1121 n.2. The court noted 

“[t]here is no evidence that any of the terms were open to negotiation or were, in 

fact, negotiated.” Id. Here, similar allegations are made by the appellant and 

those allegations are supported by evidence in the record before us. Appellant 

signed AIC’s “Buyers Order” which contained set “terms and conditions” prepared 

in advance by AIC on their standardized forms which were automatically accepted 
27

by the purchaser upon signing the purchase contract.13 Additionally, appellant 

contends (and appellee does not dispute) that he could not have negotiated any 

terms in the contract, as it was Mr. Ghasri, the AIC salesman, who structured the 

transaction and brought the completed contract to appellant to simply sign. Thus, 

we are satisfied that this contract is a contract of adhesion. 

Further, appellant alleges procedural and substantive unconscionability.14

He particularly disputes the validity of the arbitration clause, raising substantial 

questions regarding whether the clause is unconscionable. In Keeton, appellant 

alleged procedural unconscionability by asserting that she lacked meaningful 

choice in that she could not merely go to another dealership to obtain financing 

without signing a contract with an arbitration agreement. Id. at 1121. Appellant 

makes the same argument here, and Wells Fargo Bank concedes that “arbitration 

 

13 Although appellant intended to enter the contract as a guarantor of a loan 

procured by Mr. Fadavi, the contract identifies appellant as the owner of the 

vehicle. Under these facts, appellant has standing to make the claim that the 

contract is unconscionable. 

 

14

 In light of appellant’s exclusive reliance on Wisconsin Auto Title Loans, 

Inc. v. Jones, 714 N.W.2d 155 (Wisc. 2006) to support his argument in the trial 

court that the arbitration agreement he signed was unconscionable, we interpret 

appellant’s argument to be that the contract he signed, which appellant alleged was 

a contract of adhesion, was both procedurally and substantively unconscionable. 
28

clauses are an industry standard for automobile sales.” As the court noted in 

Keeton:

If every dealership in the region also imposes similar 

arbitration clauses in similar contracts of adhesion, their 

existence would not amount to reasonable choice. 

Indeed, according to our amicus, such clauses are nearly 

ubiquitous and it is not clear whether Ms. Keeton had 

access to another dealer who would not insist on a similar 

contract containing a similar arbitration clause. 

Keeton, 987 A.2d at 1122 n.13. Moreover, we have held that “the use of a 

standardized form contract . . . is a fact substantially bearing on th[e] question” of 

procedural unconscionability, and “where one is employed [] it is important for the 

court to consider whether the seller identified and explained the terms of the 

contract, particularly those which might be viewed as unusual or unfair.” Bennett 

v. Fun & Fitness, Inc., 434 A.2d 476, 481 (D.C. 1981) (citing Williams v. 

Walker-Thomas Furniture Co., 350 F.2d 445, 450 (D.C. Cir. 1965).

As Keeton states, “our well-settled unconscionability standard calls for a 

strongly fact-dependent inquiry” and requires a court to conduct “an expedited 

evidentiary hearing when parties dispute the validity of the arbitration clause.” 

Keeton, 987 A.2d at 1119, 1121-22. There is no indication that the trial court here 

undertook any such assessment despite appellant’s allegations in the complaint that 
29

Mr. Ghasri, simply brought the completed contract to the appellant for him to sign 

while he was on his shift at work, rather than in a setting where he could take a 

moment to review and discuss the agreement.15 

Appellant’s assertion of a triable issue of fact pertaining to the substantive 

unconscionability of the arbitration agreement is also supported by the record. 

For example, the trial court failed to consider how certain provisions in this 

arbitration agreement reserve some litigation avenues to one party while “barring 

[another] from seeking judicial action.” Keeton, 987 A.2d at 1122-23. The 

arbitration agreement states that the parties “prefer to resolve their disputes through 

arbitration, except that the Dealer . . . may proceed with Court action in the event

the Purchaser fails to pay any sums due under the Buyers Order or RISC.” This 

exception is carved out for AIC despite the provision subjecting the parties to 

“binding arbitration” under “all disputes” arising under “case law, statutory law, 

and all other laws.” Additionally, the trial court erroneously found that the 

agreement “did not preclude a class action,” when in fact the agreement states that 

 

15 In fact, it appears that appellant either did not read the contract or did not 

understand it, as the complaint alleges that he was not aware that the contract 

established he was the owner of the vehicle until after Mr. Ghasri delivered the car 

to Mr. Fadavi and Mr. Fadavi went to the D.C. Department of Motor Vehicles and 

could not obtain a parking permit for his residence because appellant, the owner of 

the vehicle, lived in a different zone. 
30

“by entering into this Arbitration Agreement the parties are waiving their right to 

bring or participate in any class action in court or through arbitration (this is 

referred to below as the ‘class action waiver’).” Appellant had even brought to the 

court’s attention various cases in which other courts found such clauses barring 

class actions substantively unconscionable. 

In sum, we find that this is a contract of adhesion and that appellant raised a 

triable issue of fact as to the unconscionability of the arbitration agreement given 

the similarities between Keeton and this case. The manner in which the trial court 

summarily granted appellee’s request to compel arbitration, on the basis of the 

limited pleadings, without permitting any discovery or conducting an evidentiary 

hearing to develop the record with respect to unconscionability, makes it 

impossible for us to decide whether this arbitration agreement can be enforced. 

The unconscionability standard demands a more developed record, and just as in 

Keeton, “the court’s ruling was premature at best.” Keeton, 987 A.2d at 1122. 

Accordingly, the judgment is reversed and the case is remanded. 

Reversed and remanded.