NATIONAL FUNERAL SERVICES, INC. v. ROCKEFELLER

No. 88-3945.

870 F.2d 136 (1989)

NATIONAL FUNERAL SERVICES, INC., a West Virginia corporation, Plaintiff-Appellant, v. John D. ROCKEFELLER, IV, Governor of the State of West Virginia; State of West Virginia; the West Virginia Department of Labor, a department of the State of West Virginia; Lawrence Barker, Commissioner of the Department of Labor of the State of West Virginia, Defendants-Appellees, and Amos Quesenberry, an individual; Richard Quesenberry, an individual; Rose & Quesenberry Funeral Home, Inc., a West Virginia Corporation; Thomas Seavers, an individual; Seavers Funeral Home, Inc., a West Virginia Corporation; The WV Funeral Directors Association, a West Virginia Association; Roger Price, Executive Director of the West Virginia Funeral Directors Association, a West Virginia Association; Joseph Christian, an individual; Melvin T. Strider Company, Incorporated; Colonial Funeral Homes; Eackles Funeral Home, Incorporated; Robert Spencer, an individual, Defendants.

United States Court of Appeals, Fourth Circuit.

Decided March 7, 1989.

Rehearing Denied June 1, 1989.


Attorney(s) appearing for the Case

Robert Stephen Kiss (John A. Hutchinson, Earl Kent Hellems, Gorman, Sheatsley & Hutchinson, L.C., on brief) for plaintiff-appellant.

Ann Adair Spaner, Sr. Asst. Atty. Gen (Charles G. Brown, Atty. Gen., Thomas L. Hindes, Deputy Atty. Gen., and Mark D. Kindt, Asst. Atty. Gen., on brief) for defendants-appellees.

Before HALL, Circuit Judge, BUTZNER, Senior Circuit Judge, and KISER, United States District Judge for the Western District of Virginia, sitting by designation.


Rehearing In Banc Denied June 1, 1989.

K.K. HALL, Circuit Judge:

In this declaratory judgment action, National Funeral Services ("NFS") appeals the district court's judgment, which upheld the constitutionality of W.Va.Code § 47-14-1 et seq. (1983) and found that the Act's provisions were not preempted by the Federal Trade Commission's ("FTC") Funeral Rule, 16 C.F.R. 453. On somewhat different reasoning, we affirm.

I.

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