COMMONWEALTH OF MASSACHUSETTS

HAMPSHIRE, ss. SUPERIOR COURT DEPARTMENT CIVIL ACTION NO. HSCV2014-

COMMONWEALTH OF MASSACHUSETTS,

Plaintiff,

v.

RYDER FUNERAL HOME, INC. and WILLIAM W. RYDER,

Defendants,

PEOPLESBANCORP, MHC,

Trustee-Defendant.

COMMONWEALTH'S EX PARTE MOTION FOR TEMPORARY RESTRAINING ORDER,

REAL ESTATE ATTACHMENTS, ATTACHMENTS ON TRUSTEE PROCESS, AND PRELIMINARY INJUNCTION fAFTER HEARING)

Pursuant to Mass R. Civ. P. 65(a), the Commonwealth of Massachusetts (the

"Commonwealth") moves this honorable Court ex parte for a Temporary Restraining Order

against Defendants Ryder Funeral Home, Inc. and William W. Ryder (collectively, "Defendants").

A copy of the Proposed Temporary Restraining Order is filed herewith. After hearing, the

Commonwealth will seek a preliminary injunction. The Commonwealth reserves the right to

seek additional amounts in restitution, penalties, and additional relief, according to evidence at

trial.

The Commonwealth also requests that, pursuant to Mass. R. Civ. P. 4.1(f), the Court issue

an order permitting the Commonwealth to attach the real estate of each Defendant in the amount of

1

HAMPSHIRE SUPERIOR COURT

SEP I 2 2014

HARRY JGKANOWSKI, JR. CLERK/MAGISTRATE

$500,000.

The Commonwealth further requests that, pursuant to Mass. R. Civ. P. 4.2(g), the Court

issue ex parte Summonses and Attachments on Trustee Process to Trustee-Defendant

PeoplesBancorp, MHC, to ensure that any money or other assets of either Defendant held by the

Trustee-Defendant, including accounts on which either Defendant is a signatory, trustee, or

beneficiary, be attached and secured up to $500,000, and further requiring the Trustee-Defendant

to restrict any expenditure from either Defendant's accounts consistent with the Summonses.

As grounds therefor, the Commonwealth asserts:

1. The Commonwealth is likely to establish that Defendants committed unfair or

deceptive acts or practices in violation of G. L. c. 93A, § 2(a), when they; (1) failed to

take steps to prevent unembalmed bodies from decomposition; (2) failed to follow

consumers' directions regarding funeral arrangements and the disposition of human

remains; (3) failed to properly maintain pre-need contracts and arrangements; (4) failed

to purchase pre-need insurance policies with consumers' pre-need deposits; (5) failed

to increase the coverage of pre-need insurance policies with consumers' pre-need

deposits; (6) failed to establish funeral trust accounts with consumers' pre-need

deposits; (7) misappropriated consumers' pre-need deposits for purposes other than

those expressly authorized by the related pre-need contracts; (8) delayed consumers'

selection of a new beneficiary of consumers' whole life insurance policies; (9) failed to

send consumers with pre-need contracts notice of any proposed cessation of Ryder

Funeral Home, Inc. 's operations; and (10) otherwise failed to comply with the laws and

regulations applicable to funeral homes, embalmers, and funeral directors.

2

2. The Commonwealth's complaint, the affidavits attached to the Commonwealth's

complaint, and the Commonwealth's memorandum of law in support of this motion set

forth facts demonstrating Defendants have violated the law and consumers have been

harmed.

3. The Commonwealth's complaint, the affidavits attached to the Commonwealth's

complaint, and the Commonwealth's memorandum of law in support of this motion set

forth facts demonstrating a temporary restraining order would serve the public interest

because it would (a) preserve Defendants' assets and (b) prevent any additional injury

to consumers.

4. There is a reasonable likelihood that the Commonwealth will recover judgment equal

to or greater than the attachments over and above any liability insurance known or

reasonably believed to be available.

5. The undersigned attorney certifies, pursuant to Mass. R. Civ. P. 4.1(f) and 4.2(g), that

she is unaware of any liability insurance held by Defendants; notwithstanding that, 239

Code Mass. Regs. § 3.17 requires funeral establishments to maintain liability

insurance.

6. There is a clear danger that, if notified in advance of attachment of the property.

Defendants will convey, remove, or conceal it. This is evidenced by the fact that

Defendants misappropriated consumers' pre-need deposits as well as the fact that in

June 2014, after Ryder Funeral Home closed, William Ryder transferred property

known as 114 Norwich Lake in Huntington, Massachusetts, which was recently

assessed at $155,400, for consideration of less than $100.

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7. Likewise, there is a clear danger that, if notified in advance of attachments on trustee

process. Defendants will withdraw funds, remove funds from the state, conceal funds,

or otherwise dissipate funds.

In further support of this motion, the Commonwealth submits its accompanying

memorandum of law.

WHEREFORE, the Commonwealth of Massachusetts requests relief as follows:

1. That this Court enter an ex parte temporary restraining order against Defendants

Ryder Funeral Home, Inc. and William W. Ryder in accordance with Prayer 1 of the Complaint:

2. That this Court issue ex parte Writs of Attachment in the amount of $500,000

against both Ryder Funeral Home, Inc. and William Ryder in accordance with Prayer 2 of the

Complaint.

3. That this Court issue ex parte Summonses and Attachments on Trustee Process to

Trustee-Defendant PeoplesBancorp, MHC to ensure that any money or other assets of either

Defendant held by Trustee-Defendant, including accounts on which either Defendant is a

signatory, trustee, or beneficiary, be attached and secured up to $500,000, and further requiring the

Trustee-Defendant to restrict any expenditure from either Defendant's accounts consistent with

the Summonses in accordance with Prayer 3 of the Complaint.

4. That this Court schedule a hearing on the issuance of a preliminary injunction and

enter said preliminary injunction in accordance with Prayers 4 and 5 of the Complaint; and

5. That this Court order such other and further relief as it deems just.

4

Respectfully Submitted, COMMONWEALTH OF MASSACHUSETTS MARTHA COAKLEY ATTORNEY GENERAL

/vssisram /vitorney uenerai Office of the Attorney General 1350 Main Street, 4th Floor Springfield, Massachusetts 01103 (413) 523-7710 (t) (413) 784-1244 (f)

.ann.lynch@state.ma.us Dated: September 12, 2014

5

COMMONWEALTH OF MASSACHUSETTS

HAMPSHIRE, ss. SUPERIOR COURT DEPARTMENT CIVIL ACTION NO. HSCV2014-

COMMONWEALTH OF MASSACHUSETTS,

Plaintiff,

v.

RYDER FUNERAL HOME, INC. and WILLIAM W. RYDER,

Defendants,

PEOPLESBANCORP, MHC,

Trustee-D ef end ant.

COMMONWEALTH'S MEMORANDUM IN SUPPORT OF ITS EX PARTE MOTION FOR TEMPORARY RESTRAINING ORDER,

REAL ESTATE ATTACHMENTS, ATTACHMENTS ON TRUSTEE PROCESS, AND PRELIMINARY INJUNCTION (AFTER HEARING)

INTRODUCTION

The Commonwealth of Massachusetts ("the Commonwealth"), by and through its

Attorney General, Martha Coakley, seeks an ex parte temporary restraining order against the

defendants, Ryder Funeral Home, Inc. ("Ryder Funeral Home") and William Ryder ("Ryder")

(collectively, "Defendants"). The Commonwealth is also requesting that the Court permit the

Commonwealth to attach the real estate of the Defendants in the amount of $500,000 pursuant to

Mass. R. Civ. P. 4.1(f). The Commonwealth further requests that, pursuant to Mass. R. Civ. P.

4.2(g), the Court issue ex parte Summonses and Attachments on Trustee Process to Trustee-

Defendant PeoplesBancorp, MHC. After hearing, the Commonwealth v fl'(f l^IM<Sct1PERI0R 'aT

SEP I 2 2014

HAHFLY JEKANOWSKI JR CLERK/MAGISTRATE

preliminary injunction. In support of these motions, the Commonwealth relies on its complaint,

the affidavits attached to its complaint, and this memorandum.

The Commonwealth is bringing this action because Defendants violated G. L, c. 93 A,

§ 2, by: (1) failing to take steps to prevent unembalmed bodies from decomposition; (2) failing to

follow consumers' directions regarding funeral arrangements and the disposition of human

remains; (3) failing to properly maintain pre-need contracts and arrangements; (4) failing to

purchase pre-need insurance policies with consumers' pre-need deposits; (5) failing to increase

the coverage of pre-need insurance policies with consumers' pre-need deposits; (6) failing to

establish funeral trust accounts with consumers' pre-need deposits; (7) misappropriating

consumers' pre-need deposits for purposes other than those expressly authorized by the related

pre-need contracts; (8) delaying consumers' selection of anew beneficiary of consumers' whole

life insurance policies; (9) failing to send consumers with pre-need contracts notice of any

proposed cessation of Ryder Funeral Home, Inc.'s operations; and (10) otherwise failing to

comply with the laws and regulations applicable to funeral homes, embahners, and funeral

directors.

FACTS1

The professions of embalming and funeral directing are governed by G. L. c. 13, §§ 29-

31 and G. L. c. 112, §§ 61-65E and 82-87. General Laws c. 13, §29, establishes a Board of

Registration in Embalming and Funeral Directing (the "Board") within the Division of

1 The facts in this memorandum are supported by multiple affidavits. Those affidavits are expressly incorporated by reference into the Commonwealth's Complaint and included as attachments to said Complaint, as follows:

a. Attachment 1: Affidavit of Christopher Carroll, Chief Investigator at the Massachusetts Division of Professional Licensure, with Exhibits A-G (Sept. 5, 2014), hereinafter "Carroll Aff."

b. Attachment 2: Affidavit of Robert Williams, Investigator at the Massachusetts Division of Professional Licensure (Sept. 8, 2014), hereinafter "Williams Aff."

c. Attachment 3: Affidavit of Dedrie Cusson, consumer, with Exhibits A-C (Sept. 8, 2014), hereinafter "Cusson Aff."

d. Attachment 4: Affidavit of Richard Steward, Investigator with the Attorney General's Office, with Exhibits A-E (Sept. 10, 2014), hereinafter "Steward Aff."

2

Professional Licensure (the "Division"), see G. L. c. 13, § 9(b). Pursuant to G. L. c. 112, § 85,

the Division has promulgated the following regulations related to funeral establishments,

embalmers, and funeral directors: 239 Code Mass. Regs. § 3.00 (Registration Requirements;

Standards of Business and Professional Practice); 239 Code Mass. Regs. § 4.00 (Pre-Need

Funeral Contracts and Arrangements); 239 Code Mass. Regs. § 5.00 (Continuing Education).

The Board is responsible for ensuring that funeral homes located within the

Commonwealth comply with state regulations and laws governing the operation of funeral

establishments. See G. L. c. 112, § 85. Embalmers and funeral directors must be registered by

the Board pursuant to G. L. c. 112, § 83, and 239 Code Mass. Regs. § 3.02. Funeral directors

must conduct business at a funeral establishment that is registered by the Board pursuant to G. L.

c. 112, § 83.

Ryder Funeral Home was a registered and licensed funeral establishment located at 33

Lamb Street in South Hadley, Massachusetts. Carroll Aff. 3 & Ex. A. Ryder Funeral Home

filed its Articles of Organization with the Secretary of the Commonwealth in 1964. Steward Aff.

13 & Ex. A. Ryder owns stock in Ryder Funeral Home. Carroll Aff. ^ 4 & Ex. B. Ryder is

listed as President, Treasurer, and a Director at Ryder Funeral Home in Ryder Funeral Home's

most recent Annual Report filed with the Secretary of the Commonwealth, which is dated June

14, 2013. Steward Aff. T| 4 & Ex. B. Ryder was registered and licensed as an embalmer and

funeral director. Carroll Aff. 5-6 & Exs. C-D. At all times relevant to this complaint, Ryder

was responsible for the management and day-to-day operations of Ryder Funeral Home.

Williams Aff. 13.

Conditions Discovered in May 2014

On May 27,2014, an investigator with the Division, Robert Williams ("Williams"),

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received a phone call expressing concerns about how Ryder Funeral Home was handling bodies.

Williams Aff. 'I 4. On May 28, 2014, Williams went to Ryder Funeral Home and spoke to

Ryder. At that time, Williams inspected the premises and discovered seven (7) human bodies

that were not being properly stored and were in varying states of decomposition. Williams Aff.

5-10. Specifically, Williams observed:

a. a badly decomposed body in an un-air-conditioned room, which had been at

Ryder Funeral Home since May 1, 2014;

b. an unembalmed body that had been at Ryder Funeral Home since May 22, 2014,

and was located in an un-air-conditioned room;

c. an unembalmed body that smelled of decomposing flesh, which had been at

Ryder Funeral Home since May 20, 2014;

d. an unbagged and unembalmed body in the embalming room that had arrived at

Ryder Funeral Home on May 22, 2014;

e. an embalmed body in the garage that had its face covered with a wet sheet and

had been at Ryder Funeral Home since May 22, 2014;

f. an embalmed body that was left out in the embalming room; and

g. an embalmed body in the viewing room that had been left there after the

completion of calling hours.

Williams Aff. ^ 6-10. Williams left Ryder Funeral Home, and when he returned, two additional

bodies had been delivered. One had been placed in the garage and another in a back room.

Williams Aff. ^ 12-13-

Williams also noted that the office was in disarray. There was paperwork strewn about

and there did not appear to be any effective organization system. Williams Aff. ^ 11. Williams

reviewed the paperwork associated with the bodies at Ryder Funeral Home and found it was

readily deficient in many ways. For example, it was missing instractions, signatures, and

supplemental identification, and some of the documents appeared to be altered. Williams Aff.

If 15.

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License Suspension and Surrender

On May 30, 2014, the Board suspended Defendants' licenses, finding a suspension

necessary to prevent an immediate and serious threat to the public health, safety, or welfare,

pursuant to G. L. c. 112, § 65B. Carroll Aff 12. In its Temporary Order of Suspension and

Notice of Hearing, the Board found that Defendants had committed the following violations;

a. failing to maintain the proper paperwork for nine decedents;

b. failing to properly handle—including, but not limited to, failing to timely bury or

cremate—nine decedents;

c. failing to take the appropriate steps to prepare unembahned bodies to defend

against offensive odors and decomposition in violation of 239 Code Mass. Regs.

§§3.10(2) and 3.10(7);

d. failing to follow the specific terms of pre-need funeral contracts in violation of

239 Code Mass. Regs. § 3.09(1);

e. failing to properly maintain funeral pre-need contracts and arrangements in

violation of 239 Code Mass. Regs. §§ 4.02 and 4.12;

f. failing to be fair with present or prospective customers with respect to quality of

service in violation of 239 Code Mass. Regs. § 3.13(15);

g. failing to provide safe and healthful working conditions for all employees in

violation of 239 Code Mass. Regs. § 3.13(17);

h. failing to comply with G. L. c. 112, §§ 82-87, and 239 Code Mass. Regs. §§ 3.00-

5.00;

i. engaging in fraud, deceit, and/or misrepresentation in violation of 239 Code Mass.

Regs. §3.13(18);

j. engaging in unprofessional conduct in violation of G. L. c. 112, §§ 61 and 84, and

239 Code Mass. Regs. § 3.13(24); and

k. engaging in unprofessional conduct and conduct that undennines public

confidence in the integrity of the funeral services profession.

Carroll Aff. 113 & Ex. E. Defendants waived a hearing on the suspension and revocation or

their licenses and agreed to the summary suspension. Carroll Aff. "[ 15 & Ex. F. On July 2,

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2014, Defendants signed a Voluntary Surrender Agreement in which they permanently

sun-endered their licenses and acknowledged that "sufficient facts exist that would merit the

Board's conclusion [...] that there has been a violation of G.L. c. 112, §§ 61 and 84, as well as,

239 CMR 3.09(1), 3.10(2), 3.10(7), 3.13(15), 3.13(18), 3.13(21), 3.13(24), 4.02, and 4.12."

Carroll Aff. f 16 & Ex. G. Defendants did not provide consumers with notice of the closure of

Ryder Funeral Home.

Pre-Need Contracts and Deposits

As a part of their business model. Defendants helped consumers plan funerals in advance

of the death of the covered consumer. See Williams Aff. 18-19, 21, & 23. These

arrangements were reflected in pre-need funeral contracts, which are regulated by the Division.

See 239 Code Mass. Regs. § 4.00. Pre-need funeral contracts can be financed through funeral

trust accounts, pre-need insurance policies, and/or traditional life insurance policies. 239 Code

Mass. Regs. § 4.02(4)(c).

Defendants offered to purchase pre-need insurance policies for consumers from

Columbian Mutual Life Insurance using consumers' funds. Williams Aff. ^ 18, 21, & 23.

Consumers gave Defendants funds for the purchase of pre-need insurance policies. Defendants

accepted these funds and represented to consumers that the funds would be used to purchase pre-

need insurance policies. Williams Aff. 18, 21, & 23. Defendants failed to purchase pre-need

insurance policies for consumers and failed to otherwise comply with the accounting and

recordkeeping requirements set forth in the Division's regulations. See 239 Code Mass. Regs.

§§ 4.02, 4.08, 4.10, & 4.12. Williams Aff. fflf 15 & 21. Defendants also failed to increase the

value of consumers' pre-need insurance policies when consumers gave Defendants additional

funds for this purpose. Williams Aff. *| 22.

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Defendants offered to establish funeral trust accounts for consumers at PeoplesBank

using consumers' funds. Williams Aff. ^ 19, 21, & 23. Consumers gave Defendants funds for

establishing funeral trust accounts. Defendants accepted these funds and represented to

consumers that the funds would be deposited in funeral trust accounts for consumers. Williams

Aff. 19, 21, & 23. Defendants failed to establish funeral trust accounts for consumers and

failed to otherwise comply with the accounting and recordkeeping requirements set forth in the

Division's regulations. See 239 Code Mass. Regs §§ 4.02, 4.08, 4.09, & 4.12. Williams Aff.

15 &21.

After Defendants surrendered their licenses, Williams staffed a consumer hotline.

Williams was contacted by many of Defendants' pre-need contract consumers. Williams Aff.

T1 20. In order to determine for whom Defendants had purchased pre-need insurance policies and

established funeral trust accounts, Williams obtained a list from Columbian Mutual Life

Insurance of all the consumers for whom Ryder Funeral Home had purchased pre-need insurance

policies as well as a list from PeoplesBank of all the consumers for whom Ryder Funeral Home

had established pre-need funeral trust accounts. Williams Aff. *| 18-19. To date, Williams has

been contacted by 60 consumers who made pre-need arrangements with Defendants but were on

neither the list of pre-need insurance policies from Columbian Mutual Life Insurance nor the list

of funeral trust accounts at PeoplesBank. Williams Aff. 'I 21. To date, Williams is also aware of

three (3) consumers who gave Defendants funds to increase the value of an existing pre-need

insurance policy, but for whom Defendants never increased the value of the existing pre-need

insurance policy. Williams Aff.'[ 22. Williams has obtained paperwork from most of these

consumers documenting the pre-need arrangements they made with Defendants. Williams Aff. "j

23. Based on this information, Williams believes the total amount of money these consumers

7

paid to Defendants for pre-need arrangements is at least $342,639. Williams Aff. ^ 24. Since

Ryder Funeral Home closed, Defendants have also delayed granting permission to consumers to

select a new beneficiary on whole life insurance policies that name Ryder Funeral Home as the

beneficiary for the purpose of paying for funeral services upon the consumers' deaths.

Defendants have not accounted for consumers' missing pre-need deposits, insurance

policies, or funeral trust accounts. See Cusson Aff. *[ 13. Defendants have not offered

consumers refunds for the funds Defendants accepted but did not use to purchase either pre-need

insurance policies or establish funeral trust accounts. See Cusson Aff. ]} 13. Instead of

purchasing pre-need insurance policies or establishing funeral trust accounts for consumers using

consumers' funds, it appears Defendants misappropriated consumers' funds for their own use.

Moreover, in June 2014, after Defendants closed Ryder Funeral Home, Ryder transferred

property known as 114 Norwich Lake in Huntington, Massachusetts, which was recently

assessed at $155,400, for consideration of less than $100. Steward Aff. ^ 6 & Exs. D & E. And,

another funeral home has offered to purchase Ryder Funeral Home's location and its offer has

been accepted. The closing will be on or about September 15, 2014. Williams Aff. ^1 26.

Dedrie Cusson

A representative example of one pre-need consumer harmed by Defendants is Dedrie

Cusson ("Cusson"). Cusson met with Ryder in December 2009 and signed a pre-need contract

for goods and services for her elderly aunt's future funeral. Cusson Aff. 4, 6, & 8. Cusson

paid Defendants $9,530.00 pursuant to this pre-need contract. Ryder told Cusson that the pre-

paid funds would be deposited into a special account and that they would earn interest. Cusson

Aff. 9 & 11. After Cusson made these arrangements, Defendants never communicated with

her again. She never received any statements or accountings from Defendants or any other entity

8

related to the pre-paid funds. Cusson Aff. f 12. After Cusson heard that Ryder Funeral Home

had closed, she spoke to Williams. Williams informed her that her aunt's name was not on the

list of those individuals for whom Defendants had established pre-paid funeral trust accounts.

Cusson Aff. If 14.

Defendants knew or should have known that the foregoing conduct was in violation of

the Commonwealth's laws and regulations governing the operation of funeral homes,

embalming, and the profession of funeral directing, see 239 Code Mass. Regs. §§ 3.00-4.00, as

well as Q. L. C. 93A, §2.

ARGUMENT

A. Standard for Granting Ex Parte Temporary Restraining Order and Preliminary

Injunction

When the Attorney General seeks injunctive relief in the public interest, the Court should

grant relief upon a showing that (1) there is a likelihood that the defendants committed violations

of the Massachusetts General Laws and (2) granting the requested relief promotes the public

interest or, alternatively, will not adversely affect the public. Commonwealth v. Mass. CRINC,

392 Mass. 79, 89-90 (1984). See also Commonwealth v. Wellesley Toyota Co., Inc., 18 Mass.

App. Ct. 733, 737 (1984).

1. Defendants Violated G. L. c. 93A

The Commonwealth has demonstrated that there is a likelihood that Defendants violated

G. L. c. 93A. General Laws c. 93A, § 2(a), declares "[ujnfair methods of competition and unfair

or deceptive acts or practices in the conduct of any trade or commerce" unlawful. "An action is

'unfair' if it is '(1) within the penumbra of a common law, statutory, or other established concept

of unfairness; [or] (2) immoral, unethical, oppressive, or unscrupulous.'" Gossels v. Fleet Nat.

9

Bank, 453 Mass. 366, 373 (2009), quoting Milliken & Co. v. Dura Textiles, LLC, 451 Mass. 547,

563 (2008), quoting Morrison v. Toys "R" Us, Inc., 441 Mass. 451, 457 (2004).

General Laws c. 93A, § 2(c), empowers the Attorney General to "make rules and

regulations interpreting" G. L. c. 93A, § 2(a). Pursuant to her authority, the Attorney General

has promulgated 940 Code Mass. Regs. § 3.16, which states that an act or practice is a violation

of G. L. c, 93 A, § 2(a), if:

(1) It is oppressive or otherwise unconscionable in any respect; or [...] (3) It fails to comply with existing statutes, rules, regulations or laws, meant for the protection of the public's health, safety, or welfare promulgated by the Commonwealth or any political subdivision thereof intended to provide the consumers of this Commonwealth protection...

Here, the Commonwealth has submitted affidavits detailing Defendants' acts or practices that

were unfair, immoral, unethical, oppressive, and/or unscrupulous and ran afoul of the Attorney

General's consumer protection regulations. See Gossels, 453 Mass. at 373 and 940 Code Mass.

Regs. § 3.16. The Defendants' acts or practices also violated the Division's regulations

governing funeral establishments, embalmers, and funeral directors as well as pre-need funeral

contracts and arrangements. See 239 Code Mass. Regs. §§ 3.00 through 4.00. Accordingly, the

Commonwealth has a substantial likelihood of proving numerous violations of G. L. c. 93A, § 2.

The Commonwealth is likely to prove that Defendants' failure to comply with the

Division's regulations and to embalm, properly store, and/or bury or cremate bodies in their

possession constituted an unfair or deceptive act or practice in violation of G. L. c. 93A, § 2. See

940 Code Mass. Regs. §§ 3.16 (1) & (3). Section 3.10(2) of title 239 of the Code of

Massachusetts Regulations provides: "In order to recognize the inherent dignity of the human

body and protect the public health, sufficient preservation and/or disinfection and refrigeration

shall be applied to each dead human body to guarantee temporary protection against excessive

10

decomposition." If a bod}' has not been embalmed and is to be buried or cremated within 50

hours after death, an embahner must wash, disinfect, and sanitize the body; close orifices;

envelop the body with clean sheeting or clothing; and take any other appropriate steps to ensure

no offensive leakage or odors. 239 Code Mass. Regs. § 3.10(7). If an unembalmed body is not

going to be buried within 50 hours after death, the body must also be placed in a refrigeration

unit. Id. Additionally, embalmers, funeral directors, and funeral establishments must comply

with terms of any pre-need contract and/or the wishes of the decedent or surviving kin. 239

Code Mass. Regs. § 3.09.

On May 28, 2012, Defendants had nine (9) bodies at the funeral home that were not being

cared for in compliance with these regulations. For example, one body had been at the funeral

home since May 1, 2014. This body was neither embalmed nor stored properly and was badly

decomposed. Another unembalmed body, which Williams found in the garage, was

decomposing in an open body bag and had its face covered with a wet towel. The premises

smelled of decomposing human flesh. Defendants' actions vis-a-vis these decedents did not

respect the "inherent dignity of the human body and protect the public health," which is a

violation of 239 Code Mass. Regs. § 3.10(2). Defendants were not storing bodies in a climate

controlled environment or preventing excessive decomposition as they were required to do. See

id. & 239 Code Mass. Regs. § 3.10(7). Defendants were not fulfilling their duty to comply with

pre-need contracts and/or follow the wishes of the decedent or surviving kin. See 239 Code

Mass. Regs. § 3.09. Defendants' violations of the Division's regulations, which were meant for

the protection of the public's health, safety, or welfare, constitute unfair or deceptive acts or

practices in violations of G. L. c. 93A, § 2. See 940 Code Mass. Regs. § 3.16(3).

11

Further, each of these decedents and/or their families was a consumer of Defendants who

not only entrusted Defendants to handle their bodies or their loved one's bodies with care and

respect but also had purchased goods and services from Defendants which were not delivered

either as promised or pursuant to regulation. Ultimately, Defendants' treatment of these

decedents' bodies is unfair, immoral, unethical, oppressive, unconscionable, and/or

unscrupulous. See Gossels, 453 Mass. at 373 and 940 Code Mass. Regs. § 3.16(1).

Additionally, Defendants' mishandling of pre-need deposits constitutes an unfair or

deceptive act or practice in violation of G. L. c. 93A, § 2. Pre-need funeral contracts and

arrangements are regulated by 239 Code Mass. Regs. § 4.00. Among other requirements, this

regulation prohibits a licensed funeral establishment and its agents and employees from using

pre-need deposits for personal use or the payment of operating expenses. 239 Code Mass. Regs.

§ 4.08(1). Rather, all pre-need deposits received must be either (a) deposited in a funeral trust

account or (b) paid to an insurance company for the purchase of a pre-need insurance policy.

239 Code Mass. Regs. § 4.08(2). To date, the Division has identified 60 consumers who gave

Defendants pre-need deposits and did not appear on lists of insurance policies purchased by

Defendants or funeral trust accounts established by Defendants in violation of 239 Code Mass.

Regs. § 4.08(2). Additionally, the Division is aware of three consumers who gave Defendants

funds to increase the value of existing pre-need insurance policies, but for whom Defendants

never increased the value of the existing pre-need insurance policies. Again, Defendants failed

to comply with the Division's regulations regarding pre-need contracts and deposits. See 940

Code Mass. Regs. § 3.16(3). Pursuant to 940 Code Mass. Regs. §§ 3.16 (1) & (3), this conduct

is unfair or deceptive in violation of G. L. c. 93A, § 2(a).

12

Both Defendants' mishandling of bodies and misappropriation of consumers' pre-need

deposits constitute unfair or deceptive acts or practices in violation of G. L. c. 93 A, § 2(a).

Accordingly, the Commonwealth has met its burden of establishing a likelihood that Defendants

have violated the law. See Mass. CR1NC, 392 Mass. at 89-90.

2. Injunctive Relief Would Serve the Public Interest

The Commonwealth's proposed injunctive relief prevents Defendants from dissipating or

concealing assets, which may be available to satisfy the Commonwealth's anticipated judgment

in this matter. While the total amount of damage to consumers is currently unknown, at a

minimum, Defendants owe consumers refunds for pre-need deposits that were not deposited in a

funeral trust account or used to purchase a pre-need insurance policy. The amount of missing

pre-need deposits is currently estimated at $342,639. Additionally, the Commonwealth is

seeking civil penalties (conservatively estimated at $360,000) and reasonable investigation and

litigation costs. The Commonwealth also seeks to enjoin the Defendants from disposing or

destroying records that the Commonwealth must examine to determine the extent of consumer

restitution. Additionally, the Commonwealth is requesting that the Court enjoin Defendants'

commercial activities relating to the provision of funeral goods and services and acceptance of

consumer deposits, which will prevent Defendants from harming consumers in the future.

Therefore, the preliminary injunction serves the public interest by securing assets for the

anticipated judgment, preserving business records necessary to determine consumer restitution,

and enjoining Defendants from committing future unlawful acts.

B. Real Estate Attachments

"An order approving attachment of property for a specific amount may be entered ex

parte upon findings by the court that there is a reasonable likelihood that the plaintiff will recover

13

judgment in an amount equal to or greater than the amount of the attachment over and above any

liability insurance known or reasonably believed to be available, and that either (i) the person of

the defendant is not subject to the jurisdiction of the court in the action, or (ii) there is a clear

danger that the defendant if notified in advance of attachment of the property will convey it,

remove it from the state or will conceal it, or (iii) there is immediate danger that the defendant

will damage or destroy the property to be attached." Mass. R. Civ. P. 4.1(f).

As set forth above, the Commonwealth is likely to prove the Defendants committed

numerous violations of G. L. c. 93 A, § 2(a). Accordingly, there is a reasonable likelihood that

the Commonwealth will recover a judgment against Defendants. The exact amount of that

judgment is unknown, but the amount of pre-need deposits unaccounted for is presently

estimated at $342,639. The Commonwealth is also seeking a $5,000 civil penalty for each

consumer (currently 63) for whom Defendants mishandled pre-need funds as well as for each of

the nine bodies that were mishandled. See G. L. c. 93A, § 4. Therefore, Defendants could be

liable for $360,000 in civil penalties. The Commonwealth also seeks reasonable costs of

investigation and prosecution. Given the number and severity of the consumer protection

violations, and the estimated $342,639 in restitution, it is likely that a judgment against

Defendants will exceed $500,000 and, thus, an attaclnnent of real property in the amount of

$500,000 is appropriate.

Finally, Defendants have already misappropriated funds entrusted to them by consumers.

Additionally, in June 2014, after Defendants' business operations ceased, Ryder transferred real

property with an assessed value over $155,000 for less than $100. Moreover, Ryder is in the

process of selling the real property where the funeral home was located. The real estate closing

is presently scheduled to occur on September 15, 2014. Given Defendants' conduct, there is a

14

clear and immediate danger that Defendants, if notified in advance of the attachment of real

property, will convey or encumber the property.

C. Issuance of Summonses for Trustee Process Ordering Ex Parte Attachments of Property

"An order approving trustee process for a specific amount may be entered ex parte upon

findings by the court that there is a reasonable likelihood that the plaintiff will recover judgment

in an amount equal to or greater than the amount of the trustee process over and above any

liability insurance known or reasonably believed to be available, and that either (i) the person of

the defendant is not subject to the jurisdiction of the court in the action, or (ii) there is a clear

danger that the defendant if notified in advance of the attachment on trustee process will

withdraw the goods or credits from the hands and possession of the trustee and remove them

from the state or will conceal them, or (iii) there is immediate danger that the defendant will

dissipate the credits, or damage or destroy the goods to be attached on trustee process." Mass. R.

Civ. P. 4.2(g).

For the reasons set forth above, particularly Defendants' misappropriation of consumers'

pre-need deposits and intention to convey assets in the immediate future, there is a clear and

immediate danger that Defendants, if notified in advance of the attachment on trustee process,

will withdraw money, remove funds from the state, conceal money, and/or otherwise dissipate

assets.

CONCLUSION

The Commonwealth has demonstrated a likelihood that Defendants violated G. L. c. 93 A,

§ 2(a), that the injunctive relief is in the public interest, and that the issuance of attachments of

real property and attachments on trustee process is proper. For the foregoing reasons, the

Commonwealth respectfully requests that the Court allow the Commonwealth's Ex Parte For

15

Temporary Restraining Order, Real Estate Attachments, Attachments on Trustee Process, And

Preliminary Injunction (After Hearing).

Respectfully Submitted, COMMONWEALTH OF MASSACHUSETTS MARTHA COAKLEY ATTORNEY GENERAL

Dated: September 12, 2014

n/JJMjUcA ' ' (h

1 f Ann E. Lynch'tfiBOf) #667462)

Assistant Attorney General Office of the Attorney General 1350 Main Street, 4th Floor Springfield, Massachusetts 01103 (413) 523-7710 (t) (413) 784-1244 (f) arm.lynch@state.ma.us

16

COMMONWEALTH OF MASSACHUSETTS

HAMPSHIRE, ss. SUPERIOR COURT DEPARTMENT CIVIL ACTION NO. HSCV2014-

COMMONWEALTH OF MASSACHUSETTS,

Plaintiff,

v.

RYDER FUNERAL HOME, INC. and WILLIAM W. RYDER,

Defendants,

PEOPLESBANCORP, MHC,

Trustee-Defendant.

MOTION TO APPOINT SPECIAL PROCESS SERVER

The plaintiff, the Commonwealth of Massachusetts, respectfully moves this Court to

appoint Kevin McCarthy, Director of Investigations, Office of the Attorney General, One

Ashburton Place, Boston, MA 02108, or his designee, as special process server in this action.

Respectfully Submitted, COMMONWEALTH OF MASSACHUSETTS MARTHA COAKLEY ATTORNEY GENERAL

- ^ /

, . ...IXaa /C /1

/ Aim E. Lfcich (BBO ̂ 667462) ^ Assistant Attorney General

Office of the Attorney General 1350 Main Street, 4th Floor Springfield, Massachusetts 01103 (413) 523-7710 (t) (413) 784-1244 (f) ann.lynch@state.ma.us

Dated: September 12, 2014 HAMPSHIRE SUPERIOR COURT

HARRY JEKANOWSKUR.