In 2016, the plaintiff filed a proposed class action lawsuit against Chancellor Senior Management, Ltd (“Chancellor”) alleging that Chancellor, which owned, operated, managed and controlled four senior living communities in the State of West Virginia consisting of multiple assisted living facilities, “has engaged in a scheme to defraud seniors, persons with disabilities and their family members by making misrepresentations, misleading statements, and concealing material facts such that reasonable consumers are misled and reasonably expect that Chancellor uses a Resident Assessment System to assess residents’ needs and to determine and provide staffing at its assisted living facilities. This is false and misleading because Chancellor does not use the results generated by its “Resident Assessment” system to determine or provide staffing at its facilities. On the contrary, as a matter of corporate policy and standard operating procedure, Chancellor staffs its facilities based on predetermined labor budgets designed to meet corporate profit objectives and routinely and systematically fails to staff its facilities in a manner sufficient to meet the assessed needs of its resident populations. Chancellor failed to disclose and concealed this fact from the Plaintiffs and the members of the putative Class.”
On June 5, 2019, Chancellor moved the court to compel the plaintiffs to arbitrate their claims. By Order dated October 2, 2020, the Court stated, in part: “Plaintiffs note in their motion for partial summary judgment and their response to defendant’s motion to compel arbitration that the arbitration agreement is not enforceable because of its internal inconsistencies. What Defendant seeks to avoid by noting that the unavailability of the American Health Lawyers Association’s Rules of Procedures. This is because the agreement does not require the organization to administer the arbitration. (Def s. Reply to Plaintiffs’ Response p.4) The court does not understand Plaintiffs’ argument to raise that issue. What the court perceives Plaintiffs’ position to be is that the Rules of Procedure of the American Health Lawyers Association require is that the arbitration agreement be a separate and conspicuous document. (Rule 2.1 AHLA). Without reaching the issue of conspicuous, it is clear to the court that by Defendant’s own exhibit the arbitration agreement is a part of the admissions documentation and is in no way a separate document. Defendant made a prima facie showing of the existence of an arbitration agreement. Plaintiffs, however, have met their burden of proof by demonstrating that the subject agreement cannot be enforced as written because it does not comply with its own stated standards. State ex rel. TD Ameritrade v. Shade, 239 W.Va. 694,804 S.E.2d 805 (2010).” The court cannot find that given this state of the evidence that the agreement is valid. New v. GameStop, Inc., 232 W.Va.564, 753 S.E.2d 62 (W.Va. 2013).”
McGraw v. Chancellor Senior Management, Ltd, Circuit Court for Raleigh County, West Virginia, Civil Action No. 16-C-698.
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