Federal Trade Commission Says Oklahoma Casket Monopoly Out of Step with Federal Regulations

John Kramer
John Kramer · February 13, 2002

Washington, D.C.—The U.S. District Court in the Western District of Oklahoma today denied the state’s motion to dismiss a lawsuit brought by the Institute for Justice on behalf of two entrepreneurs challenging an Oklahoma law that bars them from selling caskets to Oklahoma residents.

Kim Powers, of Ponca City, Oklahoma, and Dennis Bridges, of Knoxville, Tennessee, run Memorial Concepts Online (www.memorialconceptsonline.com), a company that provides high-quality caskets at a discount price to consumers across the nation. But Oklahoma is one of approximately a dozen states that require anyone who simply sells a casket to become a licensed funeral director and submit to onerous coursework and an embalming apprenticeship. This requirement is imposed despite the fact that casket retailers never handle dead bodies; they merely sell the casket to the consumer then deliver it to the funeral home.

With today’s decision, the federal court is poised to consider on the merits the constitutionality of Oklahoma’s protectionist licensing laws. The state had asked the court to rule on the case without hearing any evidence, but the court instead found that Powers and Bridges have stated a legal claim and should be allowed to proceed with their case. The entrepreneurs have asked the court to declare that the state laws violate their due process rights to earn an honest living, their right to equal protection and their right to economic liberty protected by the Privileges or Immunities Clause.

“The right to earn an honest living without arbitrary government interference is one of the most precious rights of Americans,” said Clark Neily, lead attorney on the case for the Washington, D.C.-based Institute for Justice. “Oklahoma law denies this right for entrepreneurs like Kim and Dennis, and we look forward to vindicating their rights in federal court.”

The supposed purpose of laws like Oklahoma’s is to protect vulnerable consumers, but the actual effect is to create a monopoly in the market for funeral merchandise with licensed funeral directors as the real beneficiaries. By keeping independent retailers out of the market, funeral directors can get away with marking up the prices for items such as caskets, sometimes as much as several hundred percent.

“Consumers shouldn’t have to be taken advantage of by a state-created monopoly, especially when there are better options,” said Powers. “We are now one step closer to giving Oklahomans the choices they deserve—the same choices that consumers in other states enjoy.”

The Institute for Justice is a public interest law firm that represents entrepreneurs nationwide who are fighting for economic liberty—the right to earn an honest living free from excessive government regulation. The Institute won a similar challenge to Tennessee’s licensing law in October 2000. Tennessee has appealed that ruling to the U.S. Court of Appeals for the Sixth Circuit, and oral arguments are scheduled for April 24, 2002.