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KAY ELEC. CO-OP. v. CITY OF NEWKIRK, OKLA.

No. 10-6214.

647 F.3d 1039 (2011)

KAY ELECTRIC COOPERATIVE, an Oklahoma Rural Electric Cooperative; and Kay County Rural Water District No. 3, an Oklahoma Rural Water District, Plaintiffs-Appellants, v. The CITY OF NEWKIRK, OKLAHOMA, a Municipality; and the Newkirk Municipal Authority, a public trust, Defendants-Appellees. Oklahoma Association of Electric Cooperatives, Amicus-Curiae.

United States Court of Appeals, Tenth Circuit.

July 29, 2011.

Attorney(s) appearing for the Case

Douglas A. Rice , Derryberry & Naifeh, LLP, Oklahoma City, OK, ( Larry Derryberry and Pete G. Serrata III , Derryberry & Naifeh, LLP, Oklahoma City, OK, and Jonathan C. Ihrig and Andrew M. Ihrig , Ihrig Law Firm, Blackwell, OK, with him on the briefs) for Plaintiffs-Appellants.

Andrew W. Lester , ( Carrie L. Williams , Lester, Loving & Davies, P.C., Edmond, OK, with him on the brief), for Defendants-Appellees.

Michael Burrage , Whitten Burrage , Oklahoma City, OK, for Amicus-Curiae.

Before MURPHY, GORSUCH, and MATHESON, Circuit Judges.

GORSUCH, Circuit Judge.

When a city acts as a market participant it generally has to play by the same rules as everyone else. It can't abuse its monopoly power or conspire to suppress competition. Except sometimes it can. If the city can show that its parent state authorized it to upend normal competition, to install instead a municipal monopoly, the city enjoys immunity from federal antitrust liability. The problem for the City of Newkirk in this case is that the...

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