Antitrust Law Daily Wrap Up, CONSUMER PROTECTION NEWS: High court asked to consider constitutionality of Louisiana’s restrictions on casket sales, (Jul 29, 2013)

By Jeffrey May, J.D.

The U.S. Supreme Court has been asked to review a decision of the U.S. Court of Appeals in New Orleans holding unconstitutional rules issued by the Louisiana Board of Funeral Directors granting funeral homes an exclusive right to sell caskets. Thepetition for certiorari was filed on July 17, 2013, by individuals who were members of the state board (Castille v. St. Joseph’s Abbey, Dkt. 13-91).

At issue is a decision of the Fifth Circuit, which held that the state did not have a legitimate interest in pure economic protection of the state funeral industry, and the law bore no rational relationship to the state’s interests in consumer protection, public health, or public safety. The appellate court upheld a judgment in favor of St. Joseph’s Abbey, an Abbey of the Benedictine Order of the Catholic Church, which had begun manufacturing and selling caskets at prices significantly lower than those offered by funeral homes. The abbey filed suit, challenging the constitutionality of the restrictions on casket sales.

In reaching its conclusion, the appellate court noted that a principal objective of the FTC's funeral industry practices rule was to “encourage entry into the funeral market of new competitors seeking to attract business by offering lower prices.” The court went on to say that although the FTC’s funeral rule did not preempt Louisiana from regulating the sale of caskets, a rule issued by the attorney general that barred third party sellers from selling caskets would be “in tension” with FTC “rules that compel funeral homes both to accept caskets purchased from others and to not charge fees for doing so,” and with FTC findings “that third party sellers do not engage in consumer abuse.”

The petitioning individuals have asked the Court:

(1) whether the Fifth Circuit erred in holding that “economic protectionism” was not a legitimate state interest under Fourteenth Amendment rational-basis analysis of equal protection and due process claims; and

(2) whether the Fifth Circuit erred by holding that Louisiana violated the Fourteenth Amendment guarantees of equal protection and due process by permitting only funeral directors to sell caskets to the public.

They argue that the decision deepens a split between the circuits on what constitutes a legitimate state interest for rational-basis review. They contend that the Supreme Court should eliminate the circuit split over economic protectionism in order to guide both state legislatures and lower courts.

Attorneys: George B. Recile (Chehardy, Sherman) for Paul Wes Castille.

Companies: St. Joseph’s Abbey

News: ConsumerProtection