Hardin v. First Cash Financial Services, Inc.

F I L E D
United States Court of Appeals
Tenth Circuit
PUBLISH
October 6, 2006
UNITED STATES CO URT O F APPEALS Elisabeth A. Shumaker
Clerk of Court
TENTH CIRCUIT

SH ELLE H A RD IN ,

Plaintiff-Appellee/
Cross-Appellant,
v. Nos. 05-6090 and 05-6107
FIRST C ASH FIN A N CIA L
SERVICES, INC., d/b/a FIRST CA SH
A U TO PA WN ,

Defendant-Appellant/
Cross-Appellee.

A PPE AL FR OM T HE UNITED STATES DISTRICT COURT
FO R TH E W ESTERN DISTRICT O F O K LAH O M A
(D .C. NO. CV-04-421-C)

Byron G. Lee, Coats Rose Yale Ryman & Lee, P.C. Houston, Texas (Patrick E.
Gaas and Heather E. Asselin, Coats Rose Yale Ryman & Lee, P.C., Houston,
Texas, and G. Rudy Hiersche, Jr., Hiersche Law Firm, Oklahoma City, Oklahoma,
with him on the briefs) for Defendant-Appellant/Cross-Appellee.

M ark E. Hammons, Sr. (Tamara L. Gow ens w ith him on the briefs), Hammons,
Gow ens & Associates, Oklahoma City, Oklahoma, for Plaintiff-Appellee/Cross-
Appellant.

Before HA RTZ, M cKA Y, and TYM KOVICH, Circuit Judges.

T YM K O VIC H, Circuit Judge.
 Shelle Hardin brought suit in federal district court alleging sex

discrimination by her former employer, First Cash Financial Services. First Cash

moved to compel arbitration pursuant to its newly adopted arbitration agreement.

The court dismissed this motion, finding that Hardin had not agreed to be bound

by the arbitration agreement. First Cash appealed pursuant to 9 U.S.C. § 16(a) of

the Federal Arbitration Act (FAA) and moved for a stay pending resolution of its

appeal. The district court granted this motion and Hardin cross-appealed the stay.

This appeal requires us to resolve three issues: (1) the scope of both the

district court’s and this court’s jurisdiction during the appeal; (2) whether an

employee’s continued employment acts to accept an employer’s unilateral

changes to an at-will employment contract under Oklahoma law; and (3) whether

First C ash’s arbitration agreement is unenforceable under Oklahoma law.

For the reasons discussed below, we affirm in part and reverse and remand

in part with instructions to compel arbitration.

I. Background

A. Facts

First Cash operates over 200 pawnshops and check cashing stores

throughout the U nited States. In 1997, First Cash hired Shelle Hardin as a

manager for one of its Oklahoma stores. At that time, First Cash did not require

its employees to settle disputes through arbitration.

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 Beginning in December 2002, however, First Cash created a Dispute

Resolution Program (DRP), which requires its employees to submit all

employment-related legal disputes to arbitration. First Cash distributed copies of

the D RP, along with a D ispute Resolution Agreement (Agreement) to every

employee. In the letter accompanying this package, First Cash told the employees

they would not immediately be bound by the DRP but could voluntarily opt into it

any time before M arch 1, 2003. After that time, participation became mandatory,

and an employee’s continued employment constituted acceptance of the terms of

the DRP. The Agreement, although allowing for the employee’s signature,

reiterated that an employee’s continued employment with the company after

M arch 1 would act to accept its terms regardless of whether the employee actually

signed the Agreement.

Shortly after receiving these materials, Hardin discussed the DRP w ith her

supervisor and unequivocally refused to consent to the DRP. Hardin stated that,

although she would not quit, her continued employment was not intended to serve

as her assent. Her supervisor responded that despite her statements to the

contrary her continued employment with First Cash would manifest her

acceptance. There was no further communication between Hardin and First Cash,

and Hardin never signed the Agreement.

In early 2003, First Cash posted a notice in its stores cautioning its

employees of the DRP’s mandatory character. It read: “This posting is a reminder

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to all employees that (by virtue of being employed with the Company on and after

M arch 1, 2003) they agree to resolve all legal claims against the Company

through the Dispute R esolution Program . . . .” Cross-Aplt. App. at 44. Yet,

despite Hardin’s discussion with her supervisor, the explicit terms of the

Agreement, and the posting, Hardin continued to work as a manager for First

Cash after M arch 1.

In December 2003, First Cash fired Hardin, and Hardin subsequently filed

suit in federal district court alleging sex discrimination. First Cash moved to

compel arbitration, claiming that Hardin was bound by the DRP.

B. District Court Proceedings

The district court found that Hardin was not bound by the DRP and denied

First Cash’s motion to compel arbitration. Citing Oklahoma law, the court noted

that while an employee’s continued employment could act to accept changes to an

at-will employment contract, acceptance must be absolute and unqualified. The

court concluded Hardin’s conduct did not meet this standard as evidenced by (1)

her failure to sign the Agreement, 1 and (2) her unequivocal statements to her

1
Although a party’s failure to sign a contract can render such contract
invalid under Oklahoma’s Statute of Frauds, it did not do so here where the
contract at issue was at-will and therefore could be performed within one-year.
See Okla. Stat. tit. 15, § 136(1) (requiring that a contract be in writing and signed
by the party to be charged unless capable of being “performed within a year from
the making [thereof]”); Krause v. Dresser Indus., Inc., 910 F.2d 674, 679 (10th
Cir. 1990) (noting that under Oklahoma law indefinite duration contracts need not
be in writing nor signed by the party to be charged); see also Burk v. K-Mart
(continued...)

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supervisor. The court construed H ardin’s conduct as a counteroffer, which First

Cash accepted by failing to terminate her employment.

II. Analysis

W e face three issues on appeal. First, we address two preliminary matters:

(1) whether the district court erred in granting First Cash’s motion to stay, and

(2) w hether this court has subject matter jurisdiction to hear the appeal. If we

have jurisdiction, we consider whether the district court correctly concluded that

Hardin was not bound by the D RP. Finally, if we find the district court in error,

we determine whether the court’s decision should nevertheless be affirmed on the

alternate ground that the DRP is illusory and therefore unenforceable.

A. Jurisdictional Concerns

Hardin raises two separate jurisdictional concerns: (1) w hether First Cash’s

appeal automatically divested the district court of jurisdiction; and (2) whether

this court has jurisdiction over the instant appeal.

1. District Court Jurisdiction

Hardin asserts that the district court erred by issuing a stay pending the

resolution of First Cash’s appeal to this court. She argues that First Cash’s appeal

did not automatically divest the district court of jurisdiction. Instead, she argues,

a stay should have been granted only if First Cash initially demonstrated to the

1
(...continued)
Corp., 770 P.2d 24, 26 (Okla. 1989) (noting that indefinite employment contracts
constitute employment at-will).

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court its entitlement to a stay and the court then balanced the respective harms to

the parties to conclude a stay was appropriate. After reviewing the district court’s

decision for abuse of discretion, we disagree. See Reed v. Bennett, 312 F.3d

1190, 1193 n.1 (10th Cir. 2002).

A party aggrieved by a district court’s denial of a motion to compel

arbitration has the right under the FAA to file an interlocutory appeal. M cCauley

v. Halliburton Energy Servs., 413 F.3d 1158, 1160 (10th Cir. 2005); see 9 U.S.C.

§ 16(a)(1)(B) (permitting appeal from an order denying a petition to compel

arbitration under 9 U.S.C. § 4). W hen a non-frivolous § 16(a) appeal is taken, the

district court is automatically and immediately divested of jurisdiction.

M cCauley, 413 F.3d at 1162. However, “the district court may frustrate any

litigant’s attempt to exploit the categorical divestiture rule by taking the

affirmative step, after a hearing, of certifying the § 16(a) appeal as frivolous or

forfeited.” Id. Here, the district court rejected Hardin’s contention that an appeal

would be frivolous.

Because First Cash appealed the district court’s denial of its motion to

compel arbitration under § 16(a), and First Cash’s appeal is not frivolous, we find

that the appeal divested the district court of jurisdiction. Therefore, the district

court properly issued a stay. 2

2
Hardin asks us to clarify M cCauley to hold that district courts are divested
of jurisdiction only as to dispositive matters, while they retain discretion for non-
(continued...)

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 2. Appellate Jurisdiction

W e have jurisdiction over final orders “denying a petition under section 4

of this title to order arbitration to proceed.” 9 U.S.C. § 16(a)(1)(B). Hardin

argues that pursuant to § 4 the district court did not issue a final order. First, she

argues that there is no final order because the district court did not conduct either

a trial by jury, bench trial, or summary judgment proceeding before ruling on the

arbitration agreement. Second, Hardin argues that we cannot construe the district

court’s order denying arbitration as one for summary judgment. Finally, Hardin

asserts that, in any case, no final order exists because First Cash never conceded

that the district court’s order was final, thereby preserving its right to assert a

trial on the issue of contract formation.

Under 9 U.S.C. § 4,

A party aggrieved by the alleged failure, neglect, or refusal of another
to arbitrate under a written agreement for arbitration may petition any
United States district court which, save for such agreement, would have
jurisdiction under Title 28, in a civil action . . . for an order directing

2
(...continued)
dispositive matters such as amendments to pleadings and discovery. W e fail to
see how such non-dispositive matters are “matters not involved in [the] appeal.”
See McCauley, 413 F.3d at 1161 (quoting Stewart v. Donges, 915 F.2d 572 (10th
Cir. 1990)). Furthermore, allowing a district court to retain jurisdiction of such
matters would disrupt the very purpose of an arbitration appeal: “Arbitration
clauses reflect the parties’ preference for non-judicial dispute resolution . . . .”
Id. at 1162 (quotation omitted) (emphasis added). Arbitration is an attempt to
avoid unnecessary court costs; by keeping non-dispositive matters within the
purview of the district court, the parties continue to face costs for which they did
not bargain.

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 that such arbitration proceed in the manner provided for in such
agreement.

In the event that the making of the arbitration agreement is in dispute,

the court shall proceed sum m arily to the trial thereof [but if] no jury
trial be dem anded by the party alleged to be in default . . . the court
shall hear and determine such issue.

Id.

Under our cases,

The existence of an agreement to arbitrate “is simply a matter of
contract between the parties; [arbitration] is a way to resolve those
disputes— but only those disputes— that the parties have agreed to
submit to arbitration.” W hen parties dispute the making of an
agreement to arbitrate, a jury trial on the existence of the agreement is
warranted unless there are no genuine issues of material fact regarding
the parties’ agreement.

Avedon Eng’g, Inc. v. Seatex, 126 F.3d 1279, 1283 (10th Cir. 1997) (quoting First

Options of Chicago, Inc. v. Kaplan, 514 U.S. 938, 943–45 (1995)).

Based on the statutory text and our precedent, we find Hardin’s arguments

unpersuasive. First, although the parties disputed the application of the DRP, the

court was able to resolve that question on the pleadings and other materials before

it. See id. Accordingly, no jury or bench trial was necessary, and the district

court properly issued an order denying First Cash’s motion to compel arbitration.

Even if a trial w ere warranted, the plain language of § 4 permits only the “party

alleged to be in default” to request a jury trial. Hardin, the party refusing

arbitration, is that party, not First Cash.

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 Second, Hardin’s contention that the district court order cannot be properly

construed as one for summary judgment also fails. As a preliminary matter, we

reject Hardin’s assertion that the court must either proceed to trial or issue a

summary judgment order. Section 4 merely states that if a jury trial is not

warranted, “the court shall hear and determine such issue.” 9 U.S.C. § 4. This is

exactly what the district court did. Indeed, the plain language of § 16(a)(1)(B)

permits an appeal “from an order denying a petition under [§ 4] to order

arbitration to proceed.” Again, this is exactly what we have here. Therefore, the

court’s order denying First Cash’s motion to compel arbitration is appealable as a

final order. See Boomer v. AT&T Corp., 309 F.3d 404, 411–13 (7th Cir. 2002)

(holding that because § 16 does not distinguish between orders denying

arbitration and final orders that reach the same end and because the purpose of the

FA A would be defeated if a simple order denying a motion to compel was not

appealable, any denial of a motion to compel arbitration is immediately

appealable).

In short, the district court properly heard and determined First Cash’s

motion under § 4, issuing a final order refusing to compel arbitration. W e

therefore have jurisdiction to hear this appeal.

* * * * *

Accordingly, because First Cash’s appeal automatically and immediately

divested the district court of jurisdiction, we affirm the district court’s order

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granting First Cash’s motion to stay. W e find that the district court issued a final

order under § 4 of the FAA, and we therefore exercise our jurisdiction to hear this

appeal.

B. Acceptance of Arbitration Agreem ent

First Cash’s primary argument on appeal is that the district court

improperly denied its motion to compel arbitration because Hardin’s conduct

evidenced an intention to be bound by the DRP. In deciding the merits of this

contention, we, like the district court, must answer an unresolved question of

Oklahoma law.

Generally, courts “should apply ordinary state-law principles that govern

the formation of contracts” to determine whether a party has agreed to arbitrate a

dispute. First Options, 514 U.S. 938, at 944. Here, because it is undisputed that

Oklahoma contract principles guide our analysis, we review the district court’s

determinations of that law de novo, employing the same legal standards applied

by the district court. See Ansari v. Qwest Commc’ns Corp., 414 F.3d 1214, 1218

(10th Cir. 2005); Gibson v. Wal-M art Stores, Inc., 181 F.3d 1163, 1166 (10th Cir.

1999). W e begin w ith an examination of case law from Oklahoma’s highest

court. Cooper v. Cent. & Sw. Servs., 271 F.3d 1247, 1251 (10th Cir. 2001).

However, where that court has not yet ruled, we “determine what decision the

state court would make if faced with the same facts and issue.” Oliveros v.

M itchell, 449 F.3d 1091, 1093 (10th Cir. 2006), by considering “state court

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decisions, decisions of other states, federal decisions, and the general weight and

trend of authority.” Armijo v. Ex Cam, Inc., 843 F.2d 406, 407 (10th Cir. 1988).

First Cash argues that Oklahoma law permits an employee’s continued

employment to manifest her assent to an employer’s proposed modification of an

at-will employment relationship even where she expressly rejects the

m odification. A lthough w e find Oklahoma law unclear on this point, we

ultimately find that Hardin’s conduct did act to accept the D RP— because First

Cash rejected Hardin’s counteroffer (to continue employment on the old terms),

her decision to remain on the job after M arch 1 manifested her assent to First

Cash’s outstanding offer to modify the terms of her at-will employment.

In general, Oklahoma follows traditional contract principles in permitting

acceptance of an offer by performance: “Performance of the conditions of a

proposal, or the acceptance of the consideration offered with a proposal, is an

acceptance of the proposal.” O kla. Stat. tit. 15, § 70; see generally Restatement

(Second) of Contracts § 19 (1981) (“The manifestation of assent may be made

wholly or partly by written or spoken words or by other acts or by failure to

act.”) (emphasis added). Indeed, the Oklahoma Court of Appeals has applied this

concept in the employment context. In Langdon v. Saga Corp., 569 P.2d 524, 527

(Okla. Civ. App. 1976), the court held that an employer’s personnel policies

extending benefits to its employees could be “accepted by continued

performance.” Id. at 528. In reaching this decision, the court noted a unilateral

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contract, such as an employer’s personnel manual, “contemplate[s] an offer which

is accepted by performance rather than a promise of performance.” Id. at 527; see

Hinson v. Cameron, 742 P.2d 549, 555 (Okla. 1987) (finding Langdon’s holding

“compatible” with its precedent).

To be sure, the instant case involves an offer, the DRP, which contemplates

acceptance by performance. At the same time, however, this case is

distinguishable from Langdon. First, the DRP is arguably not an employee

benefit, but instead acts to restrict the employee’s legal options to sue the

company. M ore fundamentally, Hardin expressly rejected the DRP. The

question, therefore, is whether these two factors alter the Langdon calculus.

Oklahoma law does not definitively answer this question. On one hand,

Oklahoma law provides that “[a]n acceptance must be absolute and unqualified

. . . . A qualified acceptance is a new proposal.” Okla. Stat. tit. 15, § 71. The

plain language of the statute suggests that Hardin’s statements would be sufficient

to reject the proposed modification. Langdon, however, strongly suggests a

different rule in the context of employee terms and conditions. The Oklahoma

Supreme Court, moreover, has held in the employment context that an employee’s

protest is ineffective against a unilateral change in an at-will employment contract

when that employee continues his employment. Robinson v. Phillips Petroleum

Co., 54 P.2d 322 (O kla. 1936) (per curiam).

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 In Robinson, an employer reduced the plaintiff employee’s commission

rate. The plaintiff protested the change, but continued his employment. Id. The

court held that the employee’s continued performance manifested assent to the

altered employment contract. The court stated,

An employment terminable at any time is . . . subject to modification at
any time by either party as a condition of its continuance. In our
opinion, the contract involved in this action is such a contract, and
when plaintiff was notified by defendant that [his commission rate was
being reduced], he w as at liberty to treat the contract as totally
rescinded and quit the em ploym ent of the defendant, but he could not
remain in such employment and simply by protest against change in the
rate of commission continue the original contract in force.

Id. at 322–23 (quotation omitted); see also Willock v. Downtown Airpark, Inc.,

130 F. Supp. 704, 706 n.5 (D. Okla. 1955) (citing Robinson for the proposition

that “the acceptance by plaintiff of new terms of employment by continuing to

work for defendant . . . amount to a valid modification of the original

agreement”).

W ere we to consider either § 71 or Robinson in isolation, this would be a

cleaner case. However, in combination it is difficult to predict under Oklahoma

law whether continued employment, in the face of an express rejection, manifests

assent to a unilateral change in an at-will employment contract. On balance, w e

are persuaded Oklahoma law would permit modifications to the terms of

employment by performance in the circumstances here. Nevertheless, we need

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not definitively resolve any tension of O klahoma law, because this case can also

be resolved on classic contract principles of offer, counteroffer, and acceptance.

Here, First Cash, in the explicit language of the Agreement, made an offer

to Hardin, which stated that her continued employment after M arch 1 would

manifest her assent to the DRP. Hardin, in equally explicit language, made a

counteroffer and informed her supervisor that she refused to abide by those terms.

First Cash immediately rejected this counteroffer when Hardin’s supervisor

reiterated that her continued employment would serve as her acceptance.

Typically, “[a]n offeree’s power of acceptance is terminated by [her]

making of a counter-offer.” Restatement (Second) of Contracts § 39(2) (1981).

This is not the case, though, where the “offeror has manifested a contrary

intention.” Id.; see id. § 38(1) (“An offeree’s power of acceptance is terminated

by his rejection of the offer, unless the offeror has manifested a contrary

intention.”). For example, “a statement in the offer that it will continue in effect

despite a rejection is effective, and a similar statement after a rejection makes a

new offer [that is effective].” Id. § 38 cmt. b; see id. § 39 cmt. a (“A

counter-offer must be capable of being accepted; it carries negotiations on rather

than breaking them off.”).

In its offer, First Cash manifested a “contrary intention” not to end

negotiations. First Cash specifically informed the employees that the offer

continued in effect until M arch 1, but that they did not have to accept the terms of

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the DRP until that time. Additionally, First Cash repeated its offer in early 2003

when it posted a reminder notice that continued employment after M arch 1 would

constitute acceptance of the DRP. In other words, the Agreement as well as the

posting manifested First Cash’s contrary intention not to permit a counteroffer to

terminate the employee’s power of acceptance.

Indeed, M arch 1 came and went and Hardin never renewed her objection.

In the face of these facts, Hardin came to w ork. W e, therefore, construe H ardin’s

continued employment after M arch 1 as acceptance of the terms of the DRP. 3 See

Berkley v. Dillard’s Inc., 450 F.3d 775, 777 (8th Cir. 2006) (finding an employee,

who refused to sign an arbitration agreement, but continued employment assented

to the terms of the program w here the agreement explicitly stated that an

employee’s continued employment constituted acceptance and the company

personally informed the employee that failure to sign would not alter the effect of

the agreement).

Accordingly, we find that under O klahoma law Hardin’s conduct in

continuing employment after M arch 1 manifested her assent to be bound by the

terms of the arbitration agreement.

3
For the first time on appeal, First Cash argues that Okla. Stat. tit. 15, § 74
is relevant to our analysis. Section 74 states that “[a] contract which is voidable,
solely for want of due consent may be ratified by a subsequent consent.” Because
First Cash failed to raise this argument before the district court, we do not
consider it here. See W olfe v. Barnhart, 446 F.3d 1096, 1103 (10th Cir. 2006)
(noting that a party waives arguments not raised in the district court).

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C. Illusory Contract

Because we find that Hardin’s conduct served to accept the arbitration

agreement, we must determine whether the contract nonetheless is enforceable.

Hardin suggests that since the contract reserves to First Cash a unilateral right to

terminate or amend the DRP, the contract is illusory and, consequently,

unenforceable. W e are not persuaded.

The Agreement states that First Cash “retains the right to terminate the

[Agreement], and/or to modify or discontinue the [DRP].” Cross-Aplt. App. at

49; accord id. at 61. However, this right is limited: “[N]o amendment shall apply

to any claims, disputes, or controversies of which the Company had actual notice

on the date of the amendment, and termination of the [Agreement and/or DRP]

shall not be effective until 10 days after reasonable notice of termination is given

to Employee or as to claims, disputes, or controversies which arose prior to the

date of termination.” Id. at 49, 61.

W e have held that “an arbitration agreement allowing one party the

unfettered right to alter the arbitration agreement’s existence or its scope is

illusory.” Dumais v. Am. Golf Corp., 299 F.3d 1216, 1219 (10th Cir. 2002).

Here, though, First Cash’s right to modify the Agreement was not unrestricted.

For example, before amending or terminating the A greement, First Cash must

provide 10-days notice to its current employees. Additionally, it cannot amend

the Agreement if it has actual notice of a potential dispute or claim, nor may it

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terminate the Agreement as to any claims which arose prior to the date of

termination.

These limitations are sufficient to avoid rendering the parties’ Agreement

to arbitrate illusory. W hile “the reservation of a unilateral right to cancel [an]

entire agreement is so broad as to negate the existence of any consideration in

that the promise is essentially empty or illusory,” if “notice of cancellation is

required the promisor is bound sufficiently so that his promise to buy or give

notice of cancellation meets the requirement of consideration.” Wilson v.

Gifford-Hill & Co., Inc., 570 P.2d 624, 626 (Okla. Civ. App. 1977); see Pierce v.

Kellogg, Brown & Root, Inc., 245 F. Supp. 2d 1212, 1215 (D. Okla. 2003)

(applying Oklahoma law and finding an arbitration agreement enforceable that

permitted the company to amend or terminate on 10-days notice); see also In re

Halliburton Co., 80 S.W .3d 566, 570 (Tex. 2002) (finding an arbitration

agreement not illusory where the employer’s right to modify was restricted in

cases w here it had actual notice of the dispute and required 10-days notice to

employees before termination).

Hardin relies on the Ninth Circuit’s opinion in Ingle v. Circuit City Stores,

Inc., 328 F.3d 1165 (9th Cir. 2003), to argue that the restrictions are insufficient

to save the Agreement. In Ingle, the defendant company’s unilateral right to

modify an arbitration agreement was restricted in only one respect: modifications

required 30 days notice to employees. The court concluded that a 30-day “notice

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is trivial when there is no meaningful opportunity to negotiate the terms of the

agreement.” Id. at 1179. Finding a lack of mutuality in the right to modify, the

court held that the modification provision was “substantively unconscionable.”

Id.

Hardin’s reliance on Ingle is misplaced. First, Oklahoma law suggests that

reasonable modification provisions are permissible, unlike in Ingle where the

court was applying California law. M ore critically, however, the Ingle court

explicitly stated that it drew “no conclusion as to whether [the modification

clause], by itself, renders the [entire arbitration] contract unenforceable,” begging

the question of whether the agreement was still effective. Id. at n.23.

W e conclude under Oklahoma law that an arbitration agreement allowing a

defendant company the unilateral right to modify or terminate the agreement is

not illusory so long as reasonable restrictions are placed on this right. See

Wilson, 570 P.2d at 626; Pierce, 245 F. Supp. at 1215; see also Am. Gen. Life &

Accident Ins. Co. v. Wood, 429 F.3d 83, 91 n.5 (4th Cir. 2005) (rejecting a similar

claim); Iberia Credit Bureau, Inc. v. Cingular Wireless LLC, 379 F.3d 159,

173–74 (5th Cir. 2004) (same); M orrison v. Circuit City Stores, Inc., 317 F.3d

646, 667–68 (6th Cir. 2003) (same); Caley v. Gulfstream Aerospace Corp., 428

F.3d 1359, 1376–77 (11th Cir. 2005) (same). The Agreement here satisfies

Oklahoma law and is therefore enforceable.

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 III. Conclusion

Accordingly, because we hold that under Oklahoma law Hardin’s conduct

constituted acceptance of the terms of the arbitration agreement and because such

Agreement was not illusory, we REVERSE the district court’s order denying First

Cash’s motion to compel arbitration and REM AND for proceedings consistent

with this opinion. W e AFFIRM the district court’s order granting a stay pending

this appeal.

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