Legal News

Antitrust Case Against Funeral Industry Ailing, But Not Dead Yet

By Ashby Jones

Anyone who’s lost a loved one in recent times can attest to the fact that the cost of burial and related services can be pretty pricey. And where items cost much more than seem warranted, you can sometimes find an antitrust violation — or at least an antitrust lawsuit alleging anti-competitive behavior.

So we suppose we weren’t entirely surprised when we read this morning of a case taking shape down in Houston, where a group called the Funeral Consumers Alliance have sued the leading casket maker and three major funeral home chains, alleging a nationwide price-fixing conspiracy. Click here for the story, from the American Lawyer’s Alison Frankel. (Frankel’s lead gave us a chuckle: “The assertions of a putative class led by a group called the Funeral Consumers Alliance are enough to make anyone opt for cremation.”)

The Alliance has alleged that as a result of the conspiracy, unsuspecting casket buyers are forced to pay perhaps twice as much as they would if there were true competition in the market.

That said, according to Frankel, the class action has, uh, “one foot in the grave” after a two-page ruling last week by Houston federal district court judge Kenneth Hoyt. Hoyt denied class certification, adopting without additional discussion the memorandum and recommendations filed last December by magistrate judge Calvin Botley. Botley had rejected the plaintiffs’ arguments, finding not only that individual issues predominated, but also that the plaintiffs hadn’t shown evidence of a conspiracy.

A lawyer for the Alliance told AmLaw that that he plans to petition the U.S. Court of Appeals for the Fifth Circuit to hear an interlocutory appeal of Judge Hoyt’s ruling. “We think the decision is wrong,” he told us. “Hopefully, the appeals court will set it right. . . . The magistrate, we think, usurped the role of a jury.”

The defense had different view of the class certification ruling. “We’re gratified,” said Richard Drubel, Jr., of Boies, Schiller & Flexner, who represents Batesville Caskets and its former parent. “We think the magistrate judge and the district court got it right.”

Full post as published by Law Blog - WSJ.com on April 01, 2009 (boomark / email).