Last Updated ( Sunday, 24 August 2008 21:42 )
May 2, 2005
FOR IMMEDIATE RELEASE
To download a .pdf file of the complaint, click here.
Funeral Consumers Alliance Files Class Action Lawsuit Against Funeral Conglomerates and Largest Casketmaker for Antitrust Violations
South Burlington, VT. - Funeral Consumers Alliance, Inc. (FCA), on behalf of its roughly 400,000 members and a nationwide class of consumers, has filed a lawsuit in federal court in California seeking to stop the country's three largest funeral homes chains and the nation's largest casketmaker from shutting out competition and fixing casket prices at artificially high levels. The suit has been filed against funeral conglomerates Service Corporation International, Alderwoods Group, Inc., Stewart Enterprises, Inc., and Batesville Casket Company. The suit seeks to prevent the defendants from boycotting independent casket discounters (ICDs), and from raising casket prices through price-fixing agreements.
Joining FCA in the suit are several individual consumer plaintiffs, who seek damages on behalf of all consumers who purchased Batesville caskets from the funeral home defendants.
"For years, funeral homes have conspired to artificially inflate casket prices," said Joshua Slocum, executive director of FCA. "We expect this lawsuit will put an end to these conspiracies, that it will bring free and fair competition to the casket market, and that consumers will be compensated for the damage this behavior has wrought."
FCA and the consumer plaintiffs allege the defendants and their co-conspirators have engaged in a group boycott to prevent ICDs from selling Batesville caskets and certain other brands. They also allege that as part of the boycott, the defendants have mounted a campaign of disparagement against ICDs and the caskets they sell. FCA believes this campaign has helped steer customers away from purchasing caskets from ICDs, and toward the artificially expensive Batesville brand of caskets the defendants sell. The plaintiffs further allege that the defendant funeral homes engaged in various forms of price coordination in further violation of state and federal competition laws. FCA alleges the defendants' conduct has suppressed competition in casket sales, which has cost families billions of dollars in overcharges.
If successful, the lawsuit will bring an end to these anti-competitive and anti-consumer practices so grieving families can enjoy substantially lower prices and greater choices for caskets. The lawsuit will also allow the consumer plaintiffs to recover the overcharges that consumers of Batesville caskets have been made to pay.
Constantine Cannon , an antitrust law firm with offices in New York and Washington, DC., is representing FCA and the consumer plaintiffs. The firm has extensive experience in antitrust litigation.
Funeral Consumers Alliance
FCA is the nation's oldest and largest funeral consumer education and advocacy organization. FCA comprises more than 100 affiliated consumer groups (often known as memorial societies) that provide families with information on funeral services and products. FCA groups have approximately 400,000 individual consumer members.
"Burial Only" . . ."Cremation Only"
Some funeral homes are wisely expanding their offerings to suit an increasingly choosy public. A certain segment, though, wants to have its cake and eat it too. These mortuaries offer choice in only one direction: up (in price). The latest incarnation of this is the shameful practice of applying a double standard to caskets. Here's a letter we received from a lady in Indiana:
I work in parish management and I am trying to develop some funeral alternatives for our parishioners. One of our parish families went to purchase a casket for burial and was told that they could not purchase a wooden cremation casket. There were forced to buy a "burial casket" that cost $1,500 [while] the cost of the cremation casket was $500. Was this legal? I know that there are air emission guidelines for cremation caskets but I did not think there were legal guidelines that would prevent the use of cremation caskets for burial.
This woman is more perceptive than many; she smelled something fishy. There are no laws anywhere in the country that prevent you from using a "cremation casket" for burial. We know of no laws anywhere that prescribe or prohibit any particular kind of casket for ground burial.
Most crematories, on the other hand, will not accept a metal casket because it can be difficult to burn, and it can cause damage to the retort (cremation chamber). If a family wants a casket (as opposed to a simple cardboard box) before cremation, most crematories require a casket of all-wood construction and a minimum of synthetic materials. The synthetic materials often used in "burial" caskets can release toxic gases as they melt, and can damage the crematory.
But there is no similar concern with cemeteries. It simply doesn't matter what type of box you use for burial. Why then would the funeral home tell this family they had to buy a "burial casket" just because the family wanted the body buried, not cremated? It seems to be greed, plain and simple, --- and here's where the double standard comes in. Funeral homes know that although some families will want to buy a more ornate casket even if there is to be a cremation, they'll balk at paying the grossly inflated "traditional" casket prices for a box "that will just get burned up anyway." So, the funeral homes stock a range of wood coffins suitable for cremation (many are quite attractive) and price them lower than they do their "burial caskets." Even though the mortuary may make a lower profit proportionally on these "cremation caskets," they're still making more money than they would if the family opted for a cheap cardboard "alternative container." But rest assured some funeral homes would have no qualms about selling you a $6,000 African Mahogany casket destined for cremation, and would probably compliment you on your "good taste."
The danger in offering these lower-priced caskets, from the undertaker's point of view, is that families just might buy them. And clearly, this family wanted to. Loath to lose the profit from a more costly "burial casket," the funeral home took advantage of this family by forcing them to buy a $1,500 casket under the false premise that only certain caskets are "suitable" for burial.
Our advice? If you wish to have a burial, and you see a casket that fits your taste and budget, insist on buying it. Let the funeral director know that you know there are no laws preventing you from using a "cremation casket" for burial, and that you don't intend to be put over a barrel. If the funeral director doesn't relent, tell him you'll find an outside casket seller. He can then choose between angering you and losing the casket sale completely, or treating your family with dignity and building good will for future business.
A Stroll Down Mortuary Lane
by Nancy Herin, FCA of Maryland and Environs
. This article is taken from her Winter 2005 Newsletter
I am inviting you for a stroll down Maryland's Mortuary Lane to see for yourself the extent of industry compliance with the 20-year-old Funeral Rule. For a full appreciation, you must first review a few of the Rule's requirements, which, as you will see, aim to foster honest, accurate information during the funeral transaction. The intent here is to allow consumers to purchase that which they wish, without pressure to buy unwanted or unneeded goods or services.
Among other things, the Funeral Rule says:
- At the beginning of a discussion about caskets-before showing them-a mortician must offer consumers a Casket Price List (CPL), which should contain the retail price and description of each regularly offered casket.
- with viewing," a mortuary may consider embalming "necessary." Consumers may instead choose "an arrangement that does not require…[embalming], such as direct cremation or immediate burial."
- Only one fee, the "Basic Services Fee," for basic mortuary staff services and overhead, is non-declinable; charging a second non-declinable fee violates the Rule.
- The Rule prohibits morticians from claiming that funeral goods or services will "delay the natural decomposition of human remains for a long-term or indefinite time."
So join with me as I recount my recent visits to several funeral homes-all esteemed, upstanding pillars of their communities.
I approached each funeral director with the following question: Could you tell me what the costs would be for prepaying my funeral?
A Casket of Gold…
The first funeral director, chic and smartly dressed, began by handing me a General Price List (GPL) and stating: "I am required by law to give this to you." She answered a few preliminary questions, then placed before me a thick book of casket photos. (The Rule allows for caskets to be displayed in this way.) Here follows part of our exchange ("FD" stands for "funeral director"):
Me: Are the prices of all of the caskets in your book listed somewhere?
FD: Well, this is the entire Batesville (a casket manufacturer) collection. (She thumbs through the book.) Do you like pink? Look at this beautiful wood. The tones are rose and beige. Here's the one that Jacqueline Kennedy Onassis bought for her husband. Here's one in 24K gold… We only carry a selection. But of course I could order any of them for you.
Me: Which are the ones that you carry? What are their prices?
FD: I'm re-doing our Casket Price List. Let me get you a copy. I'll have to find one because I'm re-doing it…
She leaves for a few minutes, then returns with a Casket Price List (CPL).
Me: I'd be interested in something simple. What is your least expensive casket?
She thumbs through her book, and lands upon a cloth-covered casket. She shows it to me and grimaces.
FD: It's basically for immediate burials… where there's no service… you know, it's for the indigent.
Me: Actually, I like it. How much does it cost?
FD: Oh, around $600. (It is not listed on her CPL, but I see on her General Price List that caskets begin at $595.)
Comment: This mortician not only flunked her Funeral Rule exam-though she began correctly by handing me a General Price List (GPL)-but she also showed an abject disregard for my wishes. First, she tried to dissuade me from selecting the least expensive casket by stating that it is normally not used-which may be true if she tells this to everyone wanting to buy it. Second, she failed to list her $595 casket on her Casket Price List (CPL). Third, she violated the Rule by failing to show me her CPL before luring me to a casket of gold….
Embalm or Die!
I told the next funeral director that I wished an immediate burial, without a viewing or funeral service; after my burial, I explained, my relatives would hold a memorial service, which they would conduct on their own without a mortician. Here follows our conversation:
Me: Some funeral directors have told me that they don't normally do immediate burials…they said it's only for the impoverished. But an immediate burial is really what I'd like.
FD: Oh, that would be no problem.
Me: Wonderful. Just so I understand this…An immediate burial means I'd simply be buried…no funeral service, no viewing, no embalming.
FD: Yes…oh…umm…you would have to be embalmed.
Me: Really? Why is that? There's no viewing with an immediate burial.
FD: Well, you'd still have to be embalmed. A person deteriorates in 24 hours. Who knows what I could pick up from a deteriorating body…maybe AIDS.
Me: Couldn't I just be refrigerated?
FD: There's no law requiring embalming, but a funeral home can set its own rules. This is our rule. Embalming is required. Unless you choose cremation. Then you wouldn't have to be embalmed.
Me: But it says here on your General Price List that I could choose an arrangement like immediate burial which would not require me to pay for embalming.
FD: Well, I hate to say this, but a deteriorating body is like…well…it's like an animal …it has an odor….so you'd have to be embalmed. Of course you could always choose cremation….
Comment: Though this funeral director understood enough to admit that embalming is not required by law, she was flat-out wrong that "a funeral home can set its own rules." The Funeral Rule permits only one nondeclinable fee-the basic services fee--but she had a second, an embalming fee.
Assuming this mortician believed in protective qualities of embalming-and didn't insist on it purely for the profit--she was in sore need of enlightenment: Not only have pathogens causing smallpox, anthrax, tetanus, and AIDS been found in embalmed bodies, but embalming fluid may actually keep one fatal illness, Creutzfeldt-Jakob disease, alive! Naturally though with an attitude like hers it's no wonder that the U.S. has become the only nation where embalming is customary.
Beware the Backhoe!
I told the next funeral director that I wished an immediate burial.
Me: Some funeral directors have told me that an immediate burial is only for the indigent, others have said that I'd have to be embalmed. Would you be able to provide just a plain immediate burial?
Me: Wonderful. Just so I understand this… I'd simply be buried…no funeral service, no viewing, no embalming.
FD: Correct. Of course you had better check with the cemetery to be on the safe side because there's dangerous equipment at the gravesite…a backhoe…your family members could get hurt if they stood too close when your body is lowered into the grave.
Comment: Later that day I consulted a representative of a large, nearby cemetery, who looked at me in amazement when I asked about this. "Dangerous equipment? Well, yes, a backhoe is used to dig the grave-before anyone arrives-and to fill in the grave-after the burial."
Hail to the Wilbert!
I discussed with the next funeral director my choice of an outer burial container, an enforced box into which the coffin is placed to prevent the gravesite from sinking once decomposition sets in. Outer burial containers are of two types: a multi-piece concrete slab assembly, called a grave liner, and a one-piece vault. Both serve the same purpose, but the vault costs much more.
Me: I understand that most cemeteries require an outer burial container. I'd like to purchase the least expensive.
FD: Didn't you say you wanted a wood (as opposed to a metal) casket?
FD: Well, then, I'd strongly recommend that you purchase a steel vault.
Me: Why is that?
FD: (She shows me a mock-up of a vault on the wall behind her.) A vault doesn't just prevent the gravesite from sinking, it also…look, I'm a funeral director and see interments…and believe me, you'd really want a Wilbert (the name of the company which manufacturers the vault). It's the best. I saw a disinterment of a body after 20 years in a wooden casket inside a Wilbert. The seal has a shelf life of a billion years! And you wouldn't have to worry about it being hit by a backhoe which happens a lot.
Me: So you mean it's protective?
FD: (She smiles.) I'm not allowed to use that word. (She pauses.) You could purchase a grave liner instead. (She shows me a mock-up on the floor behind her.) But it can be cracked by a backhoe and gets full of mud and water. I wish I didn't have to sell grave liners. They're only for cemetery maintenance, not for aesthetics or anything else like the Wilbert.
Me: What is the difference in price?
FD: The Wilbert costs $1795, the grave liner, $595.
Comment: This funeral director was a superb saleswoman. Had I not known the ins-and-outs of outer burial containers and the Funeral Rule, I would have believed her-and spent nearly three times more than necessary! Her performance was stellar, particularly her crafty maneuver around the Funeral Rule, which forbids morticians from telling consumers that funeral goods will preserve or protect human remains.
The Risk of Liability-always a good excuse!
To return briefly to the first funeral director:
Me: I'd be interested in purchasing a lower priced cremation casket for burial.
FD: Oh, no. You couldn't do that.
Me: Why not?
FD: Because cemeteries wouldn't allow it. There's too great a risk of liability.
Comment: The cemetery representative whom I had consulted about the danger of a backhoe eyed me again with amazement: "Well, I don't know about other cemeteries, but we don't care what you're buried in! As far as we're concerned, you could be buried in nothing. Our only requirement is an outer burial container because it keeps the gravesite neat."
Don't Ask, Don't Tell…
Several funeral directors saw the following problem with immediate burial:
"Your family wouldn't know when your burial would take place because we'd take your body to the cemetery at our convenience…when we'd have free time…between arrangements…we wouldn't tell your family."
Too Much of a Good Thing…
Funeral directors with whom I spoke used every argument imaginable to stress the importance of identifying the body at the funeral home before cremation-even if an I.D. had already been made at the place of death. For sure, there's no disputing the fact that identification is necessary (and required by Maryland law). But as a friend once asked: "Does a body's identity change between the place of death and the funeral home?" Here follow several exchanges:
FD: Most people die at night…that's when we use a removal service-not a licensed mortician. So an official ID would have to be made at our funeral home.
Me: How about if I die during the day?
FD: Most people come to the funeral home to identify the body!
FD: We require a funeral home ID because…well…you must have heard what happened in Georgia!
Comment: The case in Noble, Georgia , of a crematory operator who tossed bodies onto his property instead of cremating them, had nothing to do with appropriate body identification.
FD: We require an ID in our funeral home because the crematory we use insists on it.
Comment: I phoned the crematory, and here's what transpired:
Me: I'm planning my funeral, and a funeral director told me that you'd require an ID at the funeral home even if my body had already been identified at the place of death. Is that correct?
Crematory Person: Each funeral home has its own regulations…identification must comply with state law…a body must be properly identified as in a hospital.
Me: Oh, so you mean, if my next-of-kin identified me at home, where I died, that wouldn't be a proper identification?
Crematory Person: No, I couldn't say that.
Finale: You might wonder the reason for such insistence on having a family member come to the funeral home for an identification. One theory is this: There's profit in it--perhaps the cost of a "nicer" cremation casket for the ID viewing; perhaps a charge to spruce up the appearance of the deceased; perhaps a fee to shelter remains if the visit to the funeral home will be delayed.
In case you think I made all this up, you're wrong. My imagination isn't so vivid. My ability lies in reporting facts, not inventing them. But I will say this: I'm grateful to the first mortician I called on, the one who set me straight: "I have to earn a living like anyone else!"
Last Updated ( Sunday, 01 September 2013 15:26 )
Funeral Consumers Alliance
a 501(c)(3) nonprofit corporation
celebrating 41 years of protecting a consumer's right
to choose a meaningful, dignified, and affordable funeral
January 4, 2005
FOR IMMEDIATE RELEASE
Contact: Joshua Slocum, Executive Director
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Consumer Group Files Brief in Casket Monopoly Case
South Burlington, VT. - Funeral Consumers Alliance, the nation's oldest and largest funeral watchdog group, has filed a friend-of-the-court brief with the United States Supreme Court in support of a challenge to an Oklahoma law that gives funeral directors the sole right to sell caskets. FCA hopes the High Court will hear this case and rule that the law is invalid, which would overturn similar laws in many states around the nation.
"Oklahoma's law banning casket sales by anyone but funeral directors is a transparently protectionist piece of legislation designed to insulate funeral directors from any real competition," said Joshua Slocum, FCA Executive Director. "It has shut down choices for consumers and forced grieving families to pay the often outrageous markups funeral homes slap on caskets. It's high time funeral directors were forced to compete in the open market instead of being coddled by monopolistic laws that harm consumers."
On August 23rd, 2004, a three-judge panel for the 10th Circuit of the Federal Court of Appeals upheld the state's ban on the sale of caskets by anyone but licensed funeral directors. The Federal Trade Commission had filed an amicus brief criticizing the law, and the Court's opinion noted that the law "may extract a needless, wasteful requirement in many cases." But the Court said changing the law is up to the legislature, not the judiciary.
This ruling is in direct contrast to a 2002 decision by the 6th Circuit of the Federal Court of Appeals. That decision upheld an earlier ruling that overturned a similar casket sales ban in Tennessee. In its decision, the Court noted that Tennessee's justifications for the ban "come close to striking us with 'the force of a five-week-old, unrefrigerated dead fish.'"
The Institute for Justice , the Washington, D.C.-based law firm that successfully litigated the case in Tennessee, has asked the Supreme Court to overturn the 10th Circuit's decision upholding Oklahoma's law. FCA hopes the High Court will hear this case and finally put an end to the indefensible use of state laws to boost funeral home profits at the expense of American families. For more information or interviews, contact FCA Executive Director Joshua Slocum at 802-865-8300.