Court reinstate's Pennsylvania's irrational, protectionist rules

Monday, 24 February 2014 13:59

The Third Circuit Court overturned a lower-court ruling, reinstating nearly all of Pennsylvania's blatantly protectionist, anti-competitive laws restricting who can own funeral homes, what they can be called, whether they can serve food, and more. FCA filed a friend of the court brief on behalf of the plaintiffs, led by funeral director Ernie Heffner, when the case was before the district court. We agreed that many of the state laws at issue actually harmed consumers by preventing competition and innovation among funeral homes by propping up existing large, powerful funeral home operators. 

Read the ruling here.

The Institute for Justice issued the following press release. Note: We do not know what the next steps for the plaintiffs may be. 

Arlington, Va.—Today, the 3rd U.S. Circuit Court of Appeals overturned a lower court ruling that invalidated 10 of Pennsylvania’s outdated, irrational and, in most cases, blatantly anti-competitive funeral regulations as unconstitutional. The case was brought by a group of Pennsylvania funeral directors and challenged several of Pennsylvania’s funeral laws, including a requirement that every funeral home have an embalming room. The Institute for Justice filed a friend-of-the-court brief in the case, arguing the regulations are ineffective and wasteful and that it is the judiciary’s job to engage in a meaningful evaluation of whether laws serve their purposes and to strike them down as unconstitutional when they do not.

“Today’s court decision completely ignored evidence that Pennsylvania’s funeral regulations do nothing to advance the public health and did little more than rubber stamp an irrational, protectionist law,” said IJ Attorney Dan Alban, who authored IJ’s amicus brief in the Heffner v. Murphy case. “As IJ’s brief argued, proper application of the rational-basis test demands that courts engage in a genuine, meaningful review of the evidence to determine whether a law actually accomplishes its purposes, which is something that the court did not do today.”

The lawsuit brought by several smaller Pennsylvania funeral directors challenged 10 of Pennsylvania’s funeral regulations as unconstitutional and anti-competitive. Included among the challenged regulations is Pennsylvania’s requirement that all funeral homes be outfitted with an embalming room, even if the embalming room is never used—a law that is nearly identical to the embalming-room requirement that IJ successfully challenged in Minnesota.

“The 3rd Circuit’s decision essentially makes it impossible for entrepreneurs to change useless laws that exist only to protect large funeral homes from competition,” Alban said. “As the court acknowledged, funeral directors tried to get the law changed in the legislature in 2008 and failed because large funeral homes opposed it. Nonetheless, the court refused to do its job and strike down the law, stating that entrepreneurs should just try again in the legislature, even though history shows their attempts would be futile.”

“Today’s ruling shows what happens when courts fail to subject regulations to meaningful scrutiny and reinforces the need for courts to reclaim their role as the branch of government responsible for checking the legislature,” said Clark Neily, IJ senior attorney and author of “Terms of Engagement,” a book arguing in favor of judicial engagement.
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Advantages of Preparing a Will in Advance

Despite its natural, inevitable nature, death is an uncomfortable subject for many people.  Turning attention to what life might be like for others, once you’re gone, may not be the most appealing pastime, but certain accommodations must nonetheless be made in advance of your death.  Naming beneficiaries on insurance policies and investments, for example, provides protection in the event of your demise, making sure your assets are distributed to the proper parties.  A Last Will and Testament, or simply “will,” is an expanded document which serves a similar function; earmarking possessions to be passed-on and outlining your wishes for administering you estate.

Preparing a will in advance of your death makes sense on several grounds.  If you have not taken the time to prepare a will, consider some of the following reasons it may be prudent to create one at this time.

While the subjects contained in your will are highly personal, sharing innermost thoughts and feelings; the document is ultimately put in-place for the benefit of survivors.  Grief over your passing is a burden in and of itself; so piling-on additional uncertainty can complicate the situation even further.  Constructing a comprehensive will takes the burden away from survivors, furnishing assurances that everything will unfold in a reasonable way.

Maintaining a will ensures that your legacy will carry-on as intended.  When no will is present at the time of death, your estate becomes subject to legal jurisdiction governing how it must be handled.  Personal property, for example, can be bequeathed specifically according to the terms contained in your will, whereas legal statutes take-over regarding property distributions, when no will is available.

While your estate might seem straightforward, it is a mistake to assume your wishes will be carried out by the courts in lieu of a will.  If you have no spouse or children, for example, parents, siblings, nieces and nephews may be in line to inherit your property – unless you articulate a will naming other beneficiaries.  A friend or long-term partner, for instance, may be designated to receive personal property in the event of your death, but will be left out in the cold when no will is available to identify your wishes.

Even if your estate is not highly valued, in terms of assets and property held, it can become complicated to administer without a will.  Legal issues and contentious heirs arise in many cases, calling for professional assistance from lawyers and tax advisors.  Not only does the added effort take time, but legal fees and paid consultation add-up quickly, eating-in to the value of your estate.

When an up-to-date will is maintained, many questions are summarily resolved at the time of your death, expediting the resolution of your estate.  While wills are relatively inexpensive to produce, they nonetheless hold the potential to save significant sums of money administering your estate, once you are gone.

In addition to identifying property distributions, wills are used to designate who will be in charge of administering your wishes.  Once commonly referred to as “executor”, the person tasked with managing your estate is sometimes referred to as “personal representative”.  Your will allows you to select a friend or family member you feel comfortable with, and who will administer your estate competently and efficiently.  To avoid family conflicts and inconsistencies, some individuals name professionals to administer their wills.

In the absence of a will, the courts choose personal representatives, to oversee proceedings on your behalf.  While court-appointed representatives are not granted powers above and beyond other members of your family, your ability to select your own personal advocate is lost when you die without a will in-place.

You may realize additional benefits, such as tax-planning advantages, by maintaining a properly formatted will.  But at the very least, you’ll protect your heirs and beneficiaries; ensuring your desires are carried out after death.

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FCA calls foul on FTC logic SCI/Stewart merger

Wednesday, 29 January 2014 14:51

Surprisingly, the Federal Trade Commission accepted some truly bizarre funeral industry assertions when deciding which properties funeral giant Service Corporation International (brand name: "Dignity Memorial") has to sell off in order to merge with its competitor, Stewart Enterprises. Industry experts push the line that consumers don't choose cremation over burial because of price, but because of "personal" or "religious" reasons. This is plain nonsense; price is one of the top factors consumers cite when they pick cremation over burial. 

Somehow the FTC found this "logic" persuasive, and it affected how they decided which funeral businesses SCI has to divest. From the FTC's consent order:

“Funeral services do not include cremation services because consumers do not substitute cremation services for burial services based upon price, and the competitive conditions for cremation
services are substantially different than other funeral services. Since consumers primarily choose their final disposition on their personal or religious views, consumers generally do not view cremation services as a viable substitute for funeral services.”

This is remarkable. It completely contradicts the experience of consumers and consumer advocates like FCA. We have to wonder whether the Federal Trade Commission has any idea at all what choices the average American family has to make when death comes, and how tight budgets affect those. Americans do not have unlimited money to spend on funerals, and huge numbers of people have switched to cremation for its affordability as compared to casketed cemetery burial. 

FCANT President Jim Bates examines this in more detail in commentary submitted to the FTC, reproduced below.

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Last Updated ( Wednesday, 29 January 2014 16:10 )  

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Jewish funeral activists ask FTC to change course

Tuesday, 31 December 2013 15:30

A press release from the Jewish Funeral Practices Committee of Greater Washington:

December 30, 2013

For the Jewish Funeral Practices Committee of Greater Washington

Contacts:  Bob Hausman, 202-966-1545

David Balto, 202-577-5424

The Jewish Funeral Practices Committee (JFPC) of Greater Washington cautiously welcomes the Federal Trade Commission's proposed agreement with Service Corporation International (SCI) requiring them to divest Edward Sagel Funeral Directions in Rockville as a condition of allowing SCI to acquire the nation's second largest funeral services provider, Stewart Enterprises.  The FTC clearly accepted the Jewish community’s argument that there was a competitive problem in the DC/MD Jewish funeral home market.

Unfortunately, the FTC proposed decision to require the divestiture of Sagel is the wrong remedy. The Commission should have required the divestiture of Hines Rinaldi because it is an effective competitor and Sagel is not. Sagel is basically a modest storefront, does not have a chapel or facilities to handle bodies, and its market share has fallen from 25% to about 11% in the past three years.

The correct decision would have been to require divestiture of Hines Rinaldi Funeral Home with whom the Jewish Funeral Practices Committee has had a relationship with for over 11 years and provides a proper Jewish funeral for $1825.

SCI owns two funeral homes in the market – Danzansky/Goldberg and Sagel Funeral Directions.  Danzansky is a large full service facility. With control of Danzansky and Hines Rinaldi, SCI will still have the incentive and ability to undermine the JFPC arrangement.  Even if someone else purchases Sagel we can’t guarantee it will be interested in a contract with JFPC.

The FTC action is a “proposed” consent order.  It is not a final decision. The FTC has issued the proposed order for public comments for a 30-day period.  At the end of the period it will evaluate the comments and decide whether to make the settlement final. 

The Jewish Funeral Practices Committee, the law offices of David Balto and the JCRC of Greater Washington will be launching a second grassroots campaign to persuade FTC to divest Hines Rinaldi.

We, at JFPC, are very grateful for the extraordinary leadership and strategic advocacy they have provide during the first phase of this campaign.  They organized numerous meetings with FTC staff and Commissioners and an unprecedented demonstration in front of the FTC Headquarters building to dramatize community concerns.  We also extend our gratitude to the numerous elected officials – including: U.S Senators Cardin and Sarbanes, Maryland’s Governor, Lt Governor and Attorney General; Congressmen Delaney, Van Hollen, Sarbanes and Edwards; MoCo County Executive Leggett and many other local and state officials who wrote and whose letters can be found on the JCRC web site -- http://jcrc.convio.net/site/PageServer.

Last Updated ( Wednesday, 29 January 2014 16:10 )  

View the original article here

The Role a Stonemason Plays in Selecting a Memorial

This contributed article is supported by Astral Stone:

Stonemasons play an integral role in the process of creating and selecting a memorial for loved ones that have passed away, yet their role is often under appreciated. Stonemasonry has come a long way since the medieval ages and the craft of shaping and working with stone is an increasingly specialized and niche skill in today’s world.

Within the context of the production of memorials, stonemasons are an invaluable resource to consult when you need help selecting memorials for a deceased family member, pet, or friend. Here are just some areas of expertise that they can share with you to guide you along the process of crafting a memorial.

Cemetery Guidelines

Some cemeteries may have different guidelines when it comes to displaying a memorial. It’s best to talk to the organization that managed the cemetery to better understand the different restrictions and regulations when it comes to erecting memorials. A local stonemason should be well versed with each nearby cemetery’s standards; as well as specifications for memorials, and will be able to guide you along the process and paperwork required.

Types of Memorials

Memorials are usually categorized as: bronze/brass/granite plaques; granite or marble headstones; or a full monument. Keep in mind that these types of memorials will need to be taken into consideration before buying a burial site. For example, a granite plaque may be used for a cremation memorial, while a marble headstone is usually best placed upright in a lawn setting. Talk to your chosen stonemason about the different types of memorials, to know which monument is best for which burial site as well as the different materials and their ability to weather the elements.

Memorials Prices

The fee for building memorials will vary depending on the materials needed for the structure. For example, some granite memorials will be more expensive than other memorial types. The stonemason can offer advice and tailor a memorial to suit your budget, taking into account the size, inscriptions, and type of materials used.

Building a memorial is an intimate gesture that you can perform for departed loved ones. To ensure a smooth and hassle-free experience during your time of grief, it’s best to speak with qualified stonemasons such as Astral Stone to learn more about selecting memorials. Done correctly, memorials are one of the best tributes and reminders that though the departed may be gone, they are never forgotten.

View the original article here