The author from time to time has been involved in legal matters where funeral directors and cemetery owners or their employees have been involved in disputes with consumers about alleged misrepresentations that have occurred during at need or pre-need funeral and cemetery arrangements. Sometimes this alleged misrepresentation had resulted in a court case or governmental action against the funeral director or cemetery owner. The author believes it is important for industry members to be aware of the areas where misrepresentations can occur.

  The following is a summary of areas where misrepresentations have occurred that should be reviewed by all members of the industry for their own benefit and to refer to during employee training activities.

Misrepresentations made by funeral directors or their employees on both an at-need and pre-need basis have been in the following areas:

1.      The FTC Funeral Rule provides the following are misrepresentation that could be the subject of a FTC fine:

a.       Misrepresenting embalming is required when it is not;

b.      Misrepresenting a casket is required for cremation;

c.       Misrepresenting cemetery requirements;

d.      Misrepresenting legal requirements;

e.       Misrepresenting protective requirements of products; and

f.        Requiring the consumer to buy one product or service in order to purchase another (illegal tying).

2.      Selling a casket or container that had been used before without any disclosure.

3.      Renting a casket without disclosing it had been used before.

4.      Refusing to handle an AIDS victim or misrepresenting requirements for AIDS victims.

5.      Unauthorized embalming.

6.      Disparagement of less expensive caskets or containers.

7.      Steering consumers to more expensive merchandise.

8.      Misrepresentations about what is covered by the pre-need insurance or trust program that the consumer purchased and is now using.

9.      Misrepresentations about cremation.

Misrepresentations by cemetery owners and their employees on both an at-need and pre-need basis have been in the following areas:

1.      Using misleading statements to convince the customers to listen to a sales presentation, such as claiming that a lot owners records need updating or that rules and regulations have changed and need to be explained to the customers;

2.      Statements about future development of the cemetery that are not accurate, such as the future location of features, mausoleum buildings, trees and shrubs or roads;

3.      Statements that prices will be much higher or a customer will not be eligible for a discount unless they sign the contract immediately after the presentation;

4.      Misstatements about the advantages of one form of interment over another (Mausoleums v. ground interment);

5.      Misrepresentations concerning the free transfer of interment rights and products from one cemetery to another at no additional costs;

6.      Misinformation about cemetery's rules and regulations;

7.      Fraud, deceit, misrepresentation, negligence, incompetency, or misconduct in the operation of a cemetery;

8.      Making false or misleading statements of the legal requirement related to the necessity of any particular burial merchandise or services;

9.      Making any false or misleading statements regarding the sale of services or merchandise in connection with the operation of a cemetery;

10.  Advertising goods or services in any manner that is fraudulent, false, deceptive, or misleading in form or content;

11.  Making false or misleading statements that natural decomposition or decay of human remains can be prevented or substantially delayed by use of a sealed or unsealed casket, or outer burial container;

12.  Soliciting burial service or merchandise sales, through the use of undue influence, intimidation, overreaching, fraud, or other form of vexatious conduct;

13.  Discouraging the purchase of any initial burial merchandise or service that is advertised or offered for sale, with the purpose of encouraging the purchase of additional or more expensive burial merchandise or services by disparaging the initial goods or services' quality or appearance;

14.  Failing to inform a prospective purchaser that an additional charge may be necessary for the purchase of items or services provided by funeral homes or direct disposers.

15.  Failing to furnish, for retention, to each purchaser of burial rights, burial merchandise, or burial services, a written agreement that lists the items and services to be purchased;

16.  Failure to create and properly maintain a care and maintenance trust fund, or mausoleum and belowground crypt trust fund;

17.  Failure to sequester in its trust funds the required monies received from the sale of burial rights, monument maintenance, and mausoleum and crypt sales;

18.  Illegally tying the sale of a grave space to the purchase of a monument; and

19.  Denying burial space to any person because of race or color.

20.  Selling rights to the same cemetery spaces twice or more.

  Violation of any of these acts may result in sanctions or penalties against the violator by a state or federal agency. In addition a industry member may incur liability to a consumer. The previous list is not exhaustive and there may be other areas where funeral and cemetery sales people can incur liability. Today because of the increase communication on the Internet, federal and state agencies actively coordinate and share information. The result is an action by one of these agencies may result in an action by another agency in the same state or even in multiple states.