NEW ORLEANS (Legal Newsline) – A New Orleans federal judge has again ruled against companies trying to get back into the city’s cemetery tourism industry.
Judge Barry Ashe on Aug. 22 dismissed new claims made by plaintiff New Orleans Association of Cemetery Tour Guides and Companies. The group is also awaiting decision on its appeal, currently before the U.S. Court of Appeals for the Fifth Circuit, of the denial of a preliminary injunction.
The lawsuit involves a dispute at the famous St. Louis Cemetery Nos. 1 and 2 and named as defendant the entity that owns them – the New Orleans Catholic Cemeteries, which stopped allowing other companies to offer tours during the COVID-19 pandemic.
The Association alleged this conduct was anticompetitive. Ashe dismissed a previous version of the lawsuit earlier this year but gave the Association a chance to amend its complaint, which it did to allege antitrust claims.
However, Judge Ashe ruled, the Association failed to plead a “legally sufficient definition” of the product market or geographic market.
“(A)s Defendants argue, the product market is not reasonably confined to cemetery tours but extends to other kinds of tours and, when viewed from this more complete perspective, there are other reasonably interchangeable product alternatives, including architecture tours, French Quarter and Voodoo tours, and tours of cultural attractions such as Jackson Square, the Garden District, and Louis Armstrong Park,” Ashe wrote.
“Ghost tours and historical tours may also be reasonably interchangeable. And even this does not begin to round out the list of interchangeable alternatives.”
The Association called New Orleans, and specifically Cemetery No. 1, as the geographic market. Defendants said the narrowing of the market was inappropriate considering it doesn’t consider other cemetery sites in surrounding areas.
“No. 1 is simply too narrow of an economic market to comport with the commercial realities of the touring industry or to be economically significant where tours (and even more narrowly, cemetery tours) are conducted throughout New Orleans,” Ashe wrote.
NOCC closed No. 1 to all but “owning” families and visitors willing to pay a $20 fee in 2015 but allowed tour companies to operate – if they paid either $4,500 per year or charged $40 per tour and gave $1 to NOCC.
NOCC since has hired a company called CTN to manage tours in an arrangement that shut others out, it is alleged. CTN has final approval on all tour narratives and routes and only its guides can conduct tours.
Other companies could conduct tours but not offer commentary while prices are fixed at $25 for adults. The Association said its 67 member companies “stand to be excluded from visiting and providing their services” as a result of CTN’s presence.