October 25, 2012 • Vol. 3 No. 43
This Issue:
Dear Abbey........................................................................................
Agreement Keeps Wisconsin Preneed Trust in Receivership........
NFDA Puts Charlotte Convention Attendance Near 6,000...........
NFDA Elects Officers for 2012-13...................................................
Cemetery to Honor Veterans With Burial.......................................
The Notebook...................................................................................
From the Editor’s Desk....................................................................
P. 1
P. 3
P. 4
P. 4
P. 5
P. 6
P. 7
Dear Abbey
Circuit Court of Appeals Asks Louisiana Supreme Court
To Decide Monks Casket Case
New Orleans – The U.S. 5th Circuit Court of Appeals has
decided to send to the Louisiana State Supreme Court the state
funeral board’s appeal of a District Court ruling that the state’s
law allowing only licensed funeral directors to sell funeral-related merchandise, including the sale of caskets, is unconstitutional.
Five years ago, the St. Joseph Abbey of Saint Benedict began
selling its own handmade coffins for $1,500 to $2,000 to support the abbey, which invested $200,000 in a wood shop to make
and sell the handmade caskets. The abbey was stopped when the
Louisiana Board of Embalmers and Funeral Directors sent the
monks a cease and desist order threatening them with fines and
prison time, citing the state law that prohibits the sale of caskets
without a funeral director’s license.
This case also highlighted an inconsistency in the interpretation of state laws. In November 2000, a federal judge struck
down Mississippi’s law allowing only licensed funeral directors to sell caskets. In December 2002, the 6th Circuit Court
of Appeals ruled unanimously to uphold a lower court ruling
that Tennessee’s law stating that only licensed funeral directors
could sell caskets was unconstitutional. Then, in March 2005,
the 10th Circuit Court upheld a lower court decision in support
of Oklahoma’s statute requiring a funeral director’s license to
sell funeral merchandise.
800-228-6332 In July 2011, the U.S. District Court for the Eastern District
of Louisiana ruled that the state’s law allowing only licensed
funeral directors to sell funeral-related merchandise, including
the sale of caskets, is unconstitutional, which paves the way for
the monks of St. Joseph Abbey of Saint Benedict to sell their
handmade caskets.
U.S. District Court Judge Stanwood R. Duval Jr. said there is
no rational relationship between requiring persons selling caskets to become funeral directors and to sell caskets only from
funeral establishments. “The provisions simply protect a wellorganized industry that seeks to maintain a strict hold on this
business,” Duval opined.
A month later, the Louisiana Board of Embalmers and Funeral Directors decided to appeal the decision.
Lawyers argued before Judges Patrick Higginbotham, Catharina Haynes and Stephen A. Higginson from the 5th Circuit
Court of Appeals in July, and their decision was filed October
23.
Now it will be up to the state’s highest court to determine
whether state law gives funeral directors the power to regulate
casket sales by those not in funeral service.
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Memorial Business Journal
October 25, 2012
“Resolution of the statutory uncertainty surrounding the state board’s authority must come at the hand of the Louisiana Supreme Court, whose determination of state law is supreme,” Higginbotham wrote in the opinion.
“For generations, the abbey has made simple wooden caskets to bury its monks,” the opinion stated. “Public interest in
the abbey’s caskets increased after two bishops were buried in abbey caskets in the 1990s. Seeing potential in this demand,
the abbey invested $200,000 in ‘St. Joseph Woodworks… The abbey offers no funeral services. It does not prepare a deceased for burial, and its monks do not participate in funerals, except as pastors.
“To be sure, Louisiana does not regulate the use of a casket, container or other enclosure for the burial remains,” the
opinion continued. “Individuals may construct their own caskets for funerals in Louisiana or purchase caskets from outof-state suppliers via the Internet. Indeed, no Louisiana law even requires a person to be buried in a casket.”
The judges stated in the opinion that they “have doubts about the constitutionality of the state board’s regulation of
intrastate casket sales.”
“Our uncertainty is further fueled by the reality that the legislature, in crafting the statutory grant of authority in conformity with state law strictures imposed upon delegation of legislative powers, may have confined the authority of the
state board to authority over its own industry – including funeral establishments, funeral directors and embalmers – instead of granting it broad powers to reach into other markets and regulate industry competition. In short, we question
whether the state board’s regulatory power extends beyond authority to regulate the operation of certain actors – funeral
establishments and funeral directors.”
“This decision is total vindication for the monks and a complete repudiation of the state board,” said Scott Bullock,
a senior attorney with the Institute for Justice, which represents the monks. “After losing twice, the state board and its
friends in the funeral industry have one last hope: The Louisiana Supreme Court rules that the board has had the authority to go after the monks, the 5th Circuit then strikes the law down and the state board appeals to the U.S. Supreme
Court.” Bullock argued the case in June before the 5th Circuit.
“Our prayers have been answered,” said Abbot Justin Brown, head of Saint Joseph Abbey. “Our confidence never wavered that justice would be done, and we are especially gratified that the court’s decision will protect the economic liberty
of other entrepreneurs in Louisiana and around the country.”
Jeff Rowes, also a senior attorney with the Institute for Justice, said, “We expect the Louisiana Supreme Court to rule
that Louisiana law authorizes the state board to regulate casket sales. The legislature twice rejected the abbey’s effort to
amend the funeral law, making clear that the legislature has always understood the law to include the power to regulate
the monks and other casket retailers. Occupational licensing laws are often pernicious precisely because legislatures write
them so broadly, giving state boards enormous arbitrary power over the economic liberty of Americans.”
Added Rowes: “If Louisiana’s funeral law never authorized what the state board has been up to, then its members – almost all of whom are funeral directors who benefited financially from monopolizing the casket market – are going to have
to answer serious questions about why they illegally spent so much time and taxpayer money causing needless misery to
a tiny community of Benedictine monks and other casket entrepreneurs.”
Deacon Mark Coudrain, who is a plaintiff and who manages the abbey’s casket-making project, said, “America is as
much a land of economic liberty as it is a land of religious liberty. The court recognized that the U.S. Constitution doesn’t
let the government prevent monks or anyone else from earning an honest living unless there is a really good reason, the
kind of reason that was nowhere to be seen here.”
The federal case will now be stayed pending an answer from the Louisiana Supreme Court on the question that the 5th
Circuit Court posed. The 5th Circuit has set January 22, 2013, as a follow-up deadline.
MBJ
800-228-6332 www.nfda.org
October 25, 2012
Memorial Business Journal
3
Agreement Keeps Wisconsin Preneed Trust in Receivership
Madison, Wisconsin – On the eve of a scheduled hearing on a complaint filed against the Wisconsin Funeral Directors Association, an agreement was reached to remove the Wisconsin Funeral Directors Association from receivership and
allow it to resume regular day-to-day operations. However, the association’s funeral trust fund remains under the control
of the court-appointed receiver.
The order by Dane County Judge Peter Anderson would call for funeral directors to be paid approximately 60 percent
of the contracts, with additional funds to be paid to them once they become available. The Wisconsin Department of Justice will have the option to resume the case against WFDA at any time.
A month ago, the Wisconsin Funeral Directors Association notified its members that a Dane County Circuit Court
judge appointed business attorney John Wirth as receiver of WFDA after the state Department of Justice and the Wisconsin Department of Financial Institutions discovered that the association’s preneed fund might be at least $21 million
short. Wirth will continue to oversee the trust.
Wirth, as receiver of WFDA, dismissed Scott Peterson, who had been WFDA executive director since 2006, and also
terminated advisers Michael and Patrick Hull, who, since 2006, had full discretionary authority to invest the trust assets
and was required only to send notification of their investment activity to WFDA.
Wirth hired Ziegler Lotsoff Capital Management, based in Chicago, and its Red Granite Growth Equity Division,
Milwaukee, to advise on the best path forward with regard to the trust. The firm manages assets in excess of $3.7 billion.
Wirth will continue to run the trust. In an email to WFDA members dated October 5, Wirth thanked funeral directors for their patience and said that getting to the heart of the issues in this case has been his number one priority. “I have
needed to put people and advisers in place that will ensure the safety of the trust,” he said. “I also have needed to work
through the operations of the trust to ensure that I have all of the facts. We are getting there.”
Wirth said he is working to clarify the situation but acknowledged that it will take some time. Meanwhile, he emphasized the importance of funeral directors continuing to provide services to customers “as if no trust issue existed.”
“The worst thing a funeral home could do, both for itself and for Wisconsin funeral homes generally, would be to refuse to credit a depositor/customer with the full amount of his or her account,” he said. “That would be terrible public
relations and would expose that funeral director, and possibly all funeral directors who have participated in the trust, to
lawsuits from the customer, from class action lawyers who are looking for business and possibly from the Wisconsin Attorney General’s Office and others.”
Earlier this week, the Milwaukee Journal Sentinel reported that investments managed by the Wisconsin Funeral Trust
had fallen into the red for the last four years.
According to the Journal Sentinel article, Todd Martin, then attorney with a firm that had begun advising the fund in
2007, told the association shortly thereafter that it did not have to restrict investments to a small number of conservative
options. The newspaper cited financial records, memos and other documents it had received from sources in response to
open records requests. The Journal Sentinel quoted an opinion issued by Martin that he said did not limit the investment
of such trust funds to certificates of deposits and other accounts at financial institutions.
Less than two weeks later, the paper reported, the Hull Brothers urged the association to implement a more diversified
investment strategy that included investing funds in the stock market.
MBJ
800-228-6332 www.nfda.org
4
Memorial Business Journal
October 25, 2012
NFDA Puts Charlotte Convention Attendance Near 6,000
Brookfield, Wisconsin – The National Funeral Directors Association has reported that its 2012 International Convention & Expo, held October 7-10 in Charlotte, North Carolina, drew 5,816 total attendees and 387 exhibiting companies.
According to NFDA, the attendance breaks down to 3,845 attendees. Of those, 3,000 were preregistered; 487 were
non-licensee, spouse and guest registrants; 356 were international registrants representing 43 countries; 156 were mortuary science student and spouse registrants; and 1,702 were Expo-only passes. To round out the 5,816 total figure, NFDA
also reported 1,917 exhibitor representatives from 387 exhibiting companies (which translates into 906 10-by-10-foot
booths).
This compares with 2010 in New Orleans, when attendance was put at 3,703, which broke down into 3,085 preregistrants; 682 non-licensee, spouse and guest registrants; 314 international registrants representing 45 countries; 204 mortuary science student and spouse registrants; and 957 Expo-only passes. The New Orleans convention drew 2,039 exhibitor representatives from 365 exhibiting companies (753 10-by-10-foot booths).
Last year in Chicago, NFDA held, for the first time, a joint convention with the Cremation Association of North
America (CANA).
“We were very pleased that our preregistration numbers going into Charlotte were on par with our preregistration
numbers for the New Orleans convention,” said Christine Pepper, NFDA CEO.
“Charlotte was a wonderful host city and we are grateful to the North Carolina Funeral Directors Association for its
assistance and generous hospitality,” Pepper said. “We appreciate the many fine workshop presenters who took time to
share their expertise. We’re thankful for the many vendors who make our expo the largest in the world and help attendees
discover the products and services they can use to better serve families. We appreciate the support of our sponsors who
are our true partners and help make this convention an invaluable experience.”
NFDA’s 2013 International Convention & Expo will take place October 20-23 in Austin, Texas.
MBJ
NFDA Elects Officers for 2012-13
Brookfield, Wisconsin – Robert T. “Bob” Rosson Jr. of Waller Funeral Home in Oxford, Mississippi, was installed
as NFDA president at the conclusion of the association’s 2012 International Convention & Expo in Charlotte, North
Carolina.
Elected by the NFDA House of Delegates and installed as officers were: President-elect Robert L. “Robby” Bates,
Bates Family Funeral Home, De Kalb, Texas; Treasurer Robert “Rob” C. Moore IV, Moore’s Home for Funerals, Wayne,
New Jersey; and Secretary Bob Arrington, Arrington Funeral Directors, Jackson, Tennessee. These officers will serve a
one-year term.
Additionally, Randall Earl, Brintlinger & Earl Funeral Homes, Decatur, Illinois, was installed as immediate past president of NFDA and will serve a one-year term. Randy Anderson, Radney Funeral Home, Alexander City, Alabama, and
Kenneth “Ken” Cahall, Cahall Funeral Homes Inc., Georgetown, Ohio, were installed as at-large representatives and will
serve two-year terms of office.
At-large Reps. W. Ashley Cozine, Broadway Mortuary, Wichita, Kansas, and Patrick “Pat” Patton, Patton-Schad Funeral & Cremation Services, Sauk Centre, Minnesota, will serve the second year of their two-year term of service in
2012-13.
MBJ
800-228-6332 www.nfda.org
October 25, 2012
Memorial Business Journal
5
Cemetery to Honor Veterans With Burial
Hermitage, Pennsylvania – On Veterans Day, November 11, Hillcrest Memorial Park will honor all American veterans by burying the cremated remains of 20 area veterans and their spouses, at no cost to their families, among the flags
surrounding the War on Terror Veterans Memorial. The service will initiate the opportunity for the cremated remains
of veterans and non-veterans to be laid to rest among the flags in the future at a cost much lower than traditional burials.
“The cremated remains of most people are never buried,” said Tom Flynn, owner of Hillcrest Memorial Park. “That
might not be a problem at first, but eventually, the generation of people that knew and loved them will pass. What happens
to those remains then? They most likely will be stored somewhere out of sight or be lost and forgotten.”
According to Flynn, Hillcrest’s alternative of burying cremated remains will guarantee that they will never be lost. And
to ensure that the deceased will not be forgotten, Hillcrest is creating a website to honor them and share their life stories.
A permanent Web page for each person buried among the flags will include his or her biographical and military service
information, personal tributes and photos and links to other family members, military comrades and friends. For those
whose families would prefer to limit access to that information, all or part of it can be password protected.
Flynn calls the Avenue of 444 Flags “one of the most patriotic and beautiful sites in the country.” The first 100 flags
were raised February 11, 1980, the 100th day of the Iran hostage crisis, to focus on the number of days that America was
being held hostage. Another flag was raised each day until the hostages were released on January 20, 1981. “This effort
succeeded in helping draw attention to the crisis, with a photo on the cover of TIME magazine and coverage by major national and international news media,” Flynn said. “Maintained by the Avenue of 444 Flags Foundation, the flags continue
to fly as a symbol of freedom and as tribute to the veterans who have secured that freedom. Over the past 32 years, more
than 18,000 replacement flags have been raised.”
To make the best use of this resting place, Hillcrest is developing the area around the War on Terror Veterans Memorial
as an ossuary site. “An ossuary is a special site in which the cremated remains of more than one person can be interred,”
Flynn said. “Used for centuries in countries with large populations and limited burial space, ossuaries are now being established in select American cemeteries as cremation becomes more widespread and space becomes more limited. Because
of their spatial economy, Hillcrest’s ossuaries will allow the cremated remains of thousands of people to rest beneath the
444 flags.”
Hillcrest’s approach is to create waterproof vertical chambers in the ground. The remains of each person, in urns or
special containers, will be lowered into a chamber. When full, it will be permanently sealed and covered with sod. The
location of each person will be recorded. That information will be available to anyone who wishes to visit the cemetery
or website.
Hillcrest will designate chambers specifically for each of the armed forces – Army, Navy, Marines, Air Force and Coast
Guard – and there will be additional areas for firefighters, police, emergency responders and the general public.
As stated earlier, the interment of the first 20 veterans and spouses will take place with full military honors on Veterans
Day, November 11, 2012, at 11 a.m. – the same time and day as the signing of the treaty that ended World War I.
“I encourage families to take advantage of this opportunity,” Flynn said. “To be among the first to be buried there will
be quite an honor.”
Flynn asks that those who are interested contact Hillcrest Memorial Park (724-346-3818) or the John Flynn Funeral
Home (724-347-5000) as soon as possible.
To maintain the dignity of the site and the honor of those interred in the sections reserved for veterans, families will
need to provide documentation of the identity of the remains, as well as a DD-214 or other papers certifying the deceased’s honorable military service.
“We invite family and friends of those being buried, as well as others who wish to honor them, to attend the ceremony,”
Flynn said.
MBJ
800-228-6332 www.nfda.org
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Memorial Business Journal
October 25, 2012
The Notebook
Duncan Stuart Todd Ltd., Boulder, Colorado, has named Scott Goodchild as sales director. Goodchild’s background
includes experience in such diverse fields as the craft beer industry, public radio and filmmaking. Originally from the San
Francisco Bay area, he completed his education and lived in New York City for 10 years. For more information, visit www.
duncanstuarttodd.com.
Foundation Partners Group has completed its acquisition of Hiers-Baxley Funeral Services, which consists of five
funeral homes in Ocala, Belleview, TimberRidge, The Villages and Chiefland, and a cemetery, Highland Memorial Park,
in Ocala. Hiers-Baxley has served north-central Florida since 1885. “We’re very excited about the opportunity to team
up with a growing organization that shares our values and our commitment to serving families and our community with
compassion and excellence,” said Justin Baxley. Foundation Partners, a privately owned company, was established in June
2010. The company currently owns 34 funeral homes and six cemeteries in 13 states.
Tributes Inc., the online resource for local and national obituary news, has launched the next generation of its online
memorialization product – the Eternal Tribute. The product is being showcased on celebrity tributes on the company’s
obituary destination site, Tributes.com, in its national news section. Tributes intends to complete a full-scale rollout to its
extensive channel of funeral home partners in the fourth quarter. The Eternal Tribute 2.0 product includes:
• A “grand portrait” of the deceased
• Collage-style viewing of photos and guest book entries
• Customizable themes and backgrounds
• Touch screen-friendly action buttons
• Full photo integration with Tukios-powered video generation software
• A dedicated funeral home section to promote information, resources, lead generation and e-commerce.
Operation Sweaters for Veterans begins November 1. Nearly 1,000 Veterans & Family Memorial Care provider
funeral homes nationwide are sponsoring the annual VFMC Operation Sweaters for Veterans initiative. Beginning November 1 through November 12, Veterans & Family Memorial Care provider funeral homes are collecting new or gently used sweaters and gloves to be delivered to local VA hospitals, VA homes and veterans service organizations. To learn
more, visit www.veteranshonored.com.
MKJ Marketing has announced its 2013 seminar programming, which addresses the most pressing issues funeral
home owners face. The funeral industry has been consolidating for the past 20 years and the pace has not slowed; as a result, every business owner is either a buyer, a seller or both. There are marketing and financial steps you can take to make
your firm a better acquirer or to enhance its value when selling:
• Preparing your balance sheet for selling
• How acquirers view preneed
• Why training is more important
• Why brand development is important
• Developing arrangement room systems
• Developing crematory operational procedures/Developing operational expectations for crematories
• Folding acquired businesses into your brand
• Factors to consider when making an acquisition
• How demographics contribute to acquisition decisions
• Tax considerations when selling.
Speakers will include Jake Johnson, president of Johnson Consulting Group. These programs will be presented at the
MKJ ski seminar at Vail Marriott Hotel February 11-14, 2013, and at the South Beach Ritz-Carlton in Miami, Florida,
March 11-14, 2013. A condensed version will be presented in Tampa April 8 before the start of the ICCFA convention.
From June 17-30, MKJ will conduct a Baltic Sea seminar cruise aboard the Silver Seas cruise ship, the Silver Whisper.
The cruise encompasses a three-day pre-cruise event in Copenhagen; a seven-day cruise, including three days in St. Petersburg with a day trip to Moscow; and a three-day post-seminar event in Sweden.
In June 2014, MKJ will conduct a seminar cruise to the most popular cruise destination in the world, the Alaska InterCoastal Waterway.
For more information, visit www.mkjmarketing.com or call 888-655-1566.
MBJ
800-228-6332 www.nfda.org
From the Editor’s Desk…
Post-Convention Random Thoughts
A few days before journeying to the airport to catch my flight to Charlotte, the
site of the National Funeral Directors Association’s 2012 International Convention & Expo, I received an email from my chosen airline informing me that firstclass tickets were still available at a fee of $99. Since my flight was only about an
hour, I decided to pass, but I hope the airline will afford me the same opportunity
on a lengthier excursion sometime in the future.
After a short ride from the airport to the hotel, I set about trying to get the lay
of the land so at least I’d look like I knew where I was going. I didn’t know what
to expect in Charlotte, and I was interested in exploring what was for me a new
destination. I looked forward to seeing the NASCAR Hall of Fame and the Bank
of America Stadium, home of the Carolina Panthers. I had also heard that biscuits
were big in Charlotte.
After unpacking, I had time before my first scheduled event to find out exactly
where the convention center was, where in the center the event was being held,
the NFDA Publications booth location on the Expo floor, etc. Couldn’t have been
easier to find. I also noticed a restaurant whose name caught my attention – Fuel. I
made a mental note that before I left Charlotte, I had to stop in at Fuel for a slice
of pizza and a sandwich.
On the exhibit floor, I ran into Mike Russell, whose firm, Federated Insurance,
partnered with NFDA on an excellent distracted driving campaign. I watched a
copy of the video this summer at home with my 16-year-old niece, who just received her learner’s permit. She’s also a mad texter, so I thought she would benefit
from a viewing – not the vacation video she had in mind, but she watched and reacted accordingly. I hope it stays with her.
Seeing Russell reminded me to make a mental note to drop off my copy of the
video at the nearby high school.
The week passed like a whirlwind and before I knew it, I was back on the plane
heading home. I left Charlotte impressed.
Two days later, my wife and I were on our way to visit friends. We were in stopand-go traffic on a two-lane road when traffic in front of us slowed. Unfortunately,
the traffic behind us did not. I saw the whole thing in my rear-view mirror – the
driver behind me looking down, not on the road, as he maintained his speed, the
panic in his face, the screeching tires and then the collision.
As the driver of the other car stared at his front end and some $1,200 worth of
damage, I looked at the undamaged bumper of my 1999 Chevy Tahoe and felt like
Rodney Dangerfield in Caddyshack, when he drops his boat’s anchor completely
through Ted Knight’s new boat and says to him, “Hey, you scratched my anchor.”
We were lucky no one was hurt, and the driver of the other car admitted that
he had learned a lesson. Suddenly, delivering that video to the high school moved
up on my to-do list.
Memorial Business Journal
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Editor
Edward J. Defort
(edefort@nfda.org)
Managing Editor
Dawn M. Behr
(dbehr@nfda.org)
Graphics
Scott High
(shigh@nfda.org)
Gordon Nason
(gnason@nfda.org)
Memorial Business Journal is a weekly publication of the National Funeral Directors Association. The mission of
this publication is to provide objective, comprehensive news and analysis to all providers and suppliers of
goods and services to the deathcare
profession.
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is a benefit for NFDA members.
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