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OCTOBER 2014
FUNERAL HOME & CEMETERY NEWS
S ec t i on A
By Atty. Harvey I. Lapin
Harvey I. Lapin, P.C., is a member of the Illinois Bar and Florida Bar. He
is a member of the faculty at the John Marshall Law School in Chicago
and is presently teaching the subject of Tax Exempt Organizations. He is
also associated with Florida-based law firm Sachs, Sax & Caplan, leading
the firm’s Funeral, Cemetery and Cremation Practice Group.
He has written numerous articles on the subject of taxation, funeral
and cemetery law.
The subject discussed in this article and future articles resulted from
the questions from readers. If you have any questions about the top-
ics covered in this column or in obtaining professional assistance, please
contact the author c/o Harvey I. Lapin, 2592 Chedworth Ct, Northbrook,
Illinois 60062. Phone (847)509-0501 or fax to (847)509-1027.
`The author wrote articles for the Cemetery and Funeral Business
and Legal Guide (“Guide”) that have been published by CB Legal
Publishing Corporation since 1970. The Editor of the Guide recent-
ly announced the suspension of this publication. However, CB Legal
Publishing Corporation also publishes the Release Form Kit, which was
prepared by the author and has been recently updated and revised by
the author. The publication of the Release Form Kit will be continued.
This Kit contains Release and Hold Harmless forms for Funeral Homes,
Cemeteries and Crematories to use in situations where it has resolved
a complaint with a customer, and wants to be sure that there will be
no further action by the customer or their relatives. The forms can
now be purchased in an electronic format. Anyone interested in pur-
chasing the forms can contact Cheryl Lapin, at the address of CB Legal
Publishing Corporation, 2592 Chedworth Ct, Northbrook, Illinois
60062. The author also continues to practice law and can be contact
Legal
Speak
Cemeteries Right to Exclusively
Install Memorials Upheld
by Federal District Court in
Alabama?
There have been numerous court decisions over the
years since the author became involved in the industry
dealing with the rights of a cemetery to have its em-
ployees exclusively install memorials and monuments
on the cemetery’s property purchased by space owners
from the cemetery or third parties. Recently the U.S.
District for the Northern District of Alabama in the
case of Clark Memorials of Alabama, Inc. v. SCI Ala-
bama Funeral Services LLC d/b/a Elwood Cemetery
and Mausoleum, 991 F. Supp. 2d 1151 (Jan., 2014)
considered a challenge to a cemetery’s policy.
Clark Memorials brought the action alleging that
the Cemetery’s exclusive memorial and monument
installation policy constituted illegal monopolizing
(2)
Clark failed to establish that the Cemetery was
essential to competing in the installation or sale
of memorials in the geographic market.
(3)
Clark failed to establish the Cemetery had es-
tablished a monopoly or attempted to establish
a monopoly.
While this is an interesting opinion, it is not known
if it will be of precedent value in the future.
or attempting to monopolize in violation of the federal
Sherman Act and state law. Clark also alleged that the
Cemetery interfered with its contractual relationships
and interfered with its prospective economic advantag-
es. Clark additionally alleged violations of the state’s
laws. The Cemetery moved to dismiss the case.
The Court explained the process used by Clark Me-
morials to sell and install monuments and memorials.
The Court also described the Cemetery’s operation,
SCI’s ownership of nine cemeteries in Alabama and the
implementation of the policy that consumers would be
charged an installation fee if they purchase a monument
or memorial from an independent third party.
The Court then discussed the Standard for Review and
the requirements for asserting a monopolizing or at-
tempted monopolization claim. The Court noted the
starting point for both claims was to determine the rel-
evant market and then to see if a defendant had or could
acquire a sufficient market share to satisfy the claims.
Other factors to consider were that the conduct of a de-
fendant tying the sale of a product on a condition that
another product or service be purchased and a unilateral
refusal to deal with the complaining party.
The Court in its extensive opinion reviewed the facts
as alleged by Clark and the applicable laws. It deter-
mined that Clark had not alleged the necessary facts re-
quired to support its claim under the federal laws. The
Court also held that the state claims did not have to
be considered because the federal claims had been dis-
missed.
The Court granted the motion to dismiss holding that:
(1)
Clark failed to established the Cemetery’s policy
requiring that all memorials on burial spaces be
installed by cemetery staff was an illegal tying ar-
rangement, and
The Care Center
Moore Funeral Home
Serves Four Facilities
with New Care Center
The Moore Family
HATTIESBURG,MS—
Moore Funeral Services,
a family
owned and operated business, opened a new Care Cen-
ter in July to serve the company’s four facilities in South-
Central Mississippi. The enterprise consists of two fully
staffed funeral homes and two chapels.
Situated on the property of the main location in Hat-
tiesburg, the Care Center is a free-standing 2,900-square-
foot structure consisting of a two-station preparation
room, dressing room, crematory with family viewing
room and retort, office and garage.
Duncan Stuart Todd,
the preparation room specialists,
was selected to design and equip the preparation room
with the firm’s premier source package. A registered ar-
chitect,
Duncan Todd
also designed the entire building
after which the construction project was turned over to a
local architect.