Washington Report 092002

Date Published: 
Original Author: 
Robert M. Fells
Original Publication: 
ICCFA Magazine

Online Casket Sales Are Focus of New FTC Hearings

by Robert M. Fells, Esq., general counsel
In late July, the Federal Trade Commission announced it would convene a public workshop conference on October 8-11, in Washington, D.C., titled "Possible Anticompetitive Efforts to Restrict Competition on the Internet."
According to the FTC announcement, "The workshop will focus on how certain state regulation may have anticompetitive effects, and how certain business practices may raise antitrust concerns, in the context of business-to-consumer e-commerce."
Of particular interest to industry members, this workshop marks the first time the FTC is focusing on efforts to restrict the online Internet sales of caskets to consumers.
The workshop is designed "to enhance the commission's understanding of particular practices and regulations" and panels will "address certain specific industries including retailing, automobiles, real estate/mortgages, health care/pharmaceuticals/telemedicine, wine sales, auctions, contact lenses, and funerals (caskets)."
The FTC announcement observed that each of these industries has experienced "some growth in commerce via the Internet, but according to various commentators, each also may have been hampered by anticompetitive state regulation or business practices. ... In addition, these industries involve goods and services that comprise a very large portion of a consumer's budget, such as homes, cars, schools and health care."
The FTC intends that each industry panel "have at least one independent analyst or academic, and also have a representative from the affected industries (on both sides of the issue). Where appropriate, the panel will also include a representative from a government agency, including (where appropriate) representatives from different states."
The FTC stated that it hoped that "each panel will provide all sides of the issue, including perspectives of industry, intermediaries, consumers, and regulators."
With respect to online casket retailing, the FTC indicated that it wants to explore the following areas:
  • What types of state regulations limit online casket sales?
  • What are the costs to the consumers?
  • What are the pro-consumer rationales for such regulations, particularly in light of recent controversies?
  • Are there less restrictive means of achieving the same goals?
  • What is the status and focus of current litigation?
The ICFA has notified FTC staff to express its interest in participating in the upcoming workshop and to submit written testimony.
Members will be updated as plans for the workshop are finalized.

Court Blocks Injunction Prohibiting Cemetery from Removing Flags 

A Massachusetts appeals court vacated a lower court's preliminary injunction that had prohibited a cemetery from removing American flags placed on grave sites.
In Westfield Veterans Council v. Diocese of Springfield, St. Mary's Cemetery in Springfield, Massachusetts, has a policy of allowing flags to be placed on graves for seven days prior to and following Memorial Day and Veterans Day.
A local veterans group objected to the removal of the flags after seven days, alleging that such a policy violated constitutional rights of free expression. The cemetery cited maintenance and safety concerns to justify the regulation. However, the lower court granted the veterans group a preliminary injunction prohibiting the cemetery from removing any of the flags on the 1,600 grave sites until trial.
In vacating the injunction, the appellate judge noted that "the laws governing cemeteries and burials ... distinguish between private cemeteries and public cemeteries." The court held that a private cemetery "may limit what is said in a grave marker, what sort of grave markers are used, and what is acceptable as grave decor. In the absence of a right of expression by family members in connection with the graves of their loved ones, there is no basis for this injunction. There is no need to consider the reasonableness of the regulation, the rights of religious organizations to manage their own affairs, the reasonableness of the Diocese's rule, nor the balance of harms."
Interestingly, the court noted that "an appellate court, let alone a single justice of one, will not interfere with a preliminary injunction if there is a supportable basis for the trial court's action, even if, on final analysis it may prove to be mistaken. For the reasons stated, I do not think there is a supportable basis for the preliminary injunction."
The veterans group has filed an appeal to restore the injunction.