Antitrust Law Daily Wrap Up, CONSUMER PROTECTION NEWS: High court denies petition to consider constitutionality of Louisiana’s restrictions on casket sales, (Oct 15, 2013)

By Jeffrey May, J.D.

The U.S. Supreme Court will not disturb a decision of the U.S. Court of Appeals in New Orleans holding unconstitutional rules issued by the Louisiana State Board of Embalmers and Funeral Directors granting funeral homes an exclusive right to sell caskets. Today, the Court denied a petition for certiorari filed by members of the board on July 17, 2013 (Castille v. St. Joseph Abbey, Dkt. 13-91).

Left standing 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. The law bore no rational relationship to the state’s interests in consumer protection, public health, or public safety, it was decided.

The appellate court upheld a judgment in favor of St. Joseph 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 identified the FTC’s role as a federal regulator in addressing unfair or deceptive practices of funeral providers. It was 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 petition was denied, despite a call from the Pacific Legal Foundation, in a friend-of-the-court brief, for the Court to take up the case and reaffirm that regulations that arbitrarily protect established insiders from competition violate the Constitution. According to the non-profit group, the case had presented an opportunity for the Court to reiterate that “states may limit entry into a trade only to protect the general public, and not solely to prevent legitimate economic competition for the benefit of politically influential groups.”

Attorneys: George B. Recile (Chehardy, Sherman) for Paul Wes Castille. Scott G. Bullock, Institute for Justice, for St. Joseph Abbey. Timothy Sandefur for Pacific Legal Foundation.

Companies: St. Joseph Abbey

News: ConsumerProtection