UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF OKLAHOMA
UNITED STATES OF AMERICA,
CITY OF STILWELL, OKLAHOMA, et al.
| Case No. CIV 96-196-B
Plaintiff, United States of America, filed its Complaint on April 25, 1996.
Plaintiff and defendants, by their respective attorneys, have consented to the
entry of this Final Judgment without trial or adjudication of any issue of fact
or law. This Final Judgment shall not be evidence against or an admission by
any party with respect to any issue of fact or law. Therefore, without trial
or adjudication of any issue of fact or law herein, and upon consent of the
parties, it is hereby
ORDERED, ADJUDGED, AND DECREED, as follows:
This Court has jurisdiction of the subject matter of this action and of each of the parties
consenting hereto. Venue is proper in the Eastern District of Oklahoma. The Complaint states
a claim upon which relief may be granted against the defendants under Sections 1 and 2 of the
Sherman Act, 15 U.S.C. §§ 1 & 2.II.
As used herein:
- the term "defendants" means the City of Stilwell, Oklahoma ("City")
and the Stilwell Area Development Authority;
- the term "document" means all "writings and recordings" as that
phrase is defined in Rule 1001(1) of the Federal Rules of Evidence;
- two or more products are "unbundled" when available separately and
priced such that the seller's charge for the combination is no less than the sum
of the individual product prices;
- the term "person" means any natural person, corporation, firm,
company, sole proprietorship, partnership, association, institution,
governmental unit, public trust, or other legal entity.
Prohibited and Mandated Conduct
- This Final Judgment applies to the defendants, jointly and severally, and to
their respective successors, assigns, and to all other persons in active concert or participation
with any of them who shall have received actual notice of the Final Judgment by personal
service or otherwise.
- Nothing herein contained shall suggest that any portion of this Final Judgment
is or has been created for the benefit of any third party and nothing herein shall be construed
to provide any rights to any third party.
- The defendants, and each of them, are enjoined and restrained from requiring
any consumer of electric energy to purchase retail electric service from a defendant as a
condition of receiving water or sewer service from a defendant.
- Any application for water or sewer service or other written materials
distributed by a defendant to prospective applicants for water or sewer service shall include,
in a conspicuous manner, the following disclaimer:
Although we provide electric service, as well as water
and sewer services, we do not require you to purchase electric
service from us as a condition of receiving water or sewer service
and we will not discriminate against you if you do not purchase
electric service from us.
- The defendants, and each of them, are enjoined and restrained from denying,
withholding, or delaying any service, license or permit, or otherwise threatening,
discriminating or retaliating against any person that has not agreed to purchase or does not
purchase electric service from a defendant, unless defendants' reason for such conduct is
unrelated to such person's choice of retail electric provider.
Nothing in this Final Judgment shall prohibit a defendant from:
- exercising any valid right now or hereafter conferred by State law to
expropriate facilities used by any retail electric supplier to furnish electric energy
within the City's corporate boundaries;
- commencing or prosecuting, in good faith, litigation to ascertain or protect any
right now or hereafter conferred by State law to restrict the furnishing of electric
energy within the City's corporate boundaries to retail electric suppliers authorized by
law to do so; and
- furnishing any premises with more than one utility service on an unbundled
- Defendants are ordered to maintain an antitrust compliance program which
shall include the following:
- Designating, within 30 days of entry of this Final Judgment, an
Antitrust Compliance Officer with responsibility for accomplishing the
antitrust compliance program and with the purpose of achieving compliance
with this Final Judgment. The Antitrust Compliance Officer shall, on a
continuing basis, supervise the review of the current and proposed activities
of defendants to ensure that they comply with this Final Judgment.
- The Antitrust Compliance Officer shall be responsible for
accomplishing the following activities:
- providing copies of this Final Judgment to individuals
currently serving on the governing boards, and to non-clerical
employees of the Stilwell Utility Department and the Stilwell Area
Development Authority, and to each individual hereafter assuming any
such position, and obtaining a written certification from such
individuals that they received, read, understand to the best of their
ability, and agree to abide by this Final Judgment and that they have
been advised that noncompliance with the Final Judgment may result
in conviction for criminal contempt of court; and
- briefing annually the governing boards and the non-clerical employees
of the Stilwell Utility Department and the Stilwell Area Development
Authority on this Final Judgment and the antitrust laws.
- Within 75 days after the entry of this Final Judgment, the defendants shall
certify to the plaintiff that they have complied with Section IV above, designated an Antitrust
Compliance Officer, and distributed the Final Judgment in accordance with Section VI(A)
- For each year of the term of this Final Judgment, the defendants shall file with
the plaintiff, on or before the anniversary date of entry of this Final Judgment, a statement as
to the fact and manner of their compliance with the provisions of Sections IV and VI above.
Further Elements of the Final Judgment
- To determine or secure compliance with this Final Judgment and for no other
purpose, duly authorized representatives of the plaintiff shall, upon written request of the
Assistant Attorney General in charge of the Antitrust Division, and on reasonable notice to a
defendant made to its principal office, be permitted, subject to any legally recognized
- access during such defendant's office hours to inspect and copy all
documents in the possession or under the control of the defendant, who may
have counsel present, relating to any matters contained in this Final Judgment;
- subject to the reasonable convenience of such defendant and without
restraint or interference from it, to interview officers, employees or agents of
the defendant, who may have counsel present, regarding such matters.
- Upon the written request of the Assistant Attorney General in charge of the
Antitrust Division made to a defendant's principal office, such defendant shall submit such
written reports, under oath if requested, relating to any matters contained in this Final
Judgment as may be reasonably requested, subject to any legally recognized privilege.
- No information or documents obtained by the means provided in Section VIII
shall be divulged by the plaintiff to any person other than a duly authorized representative of
the Executive Branch of the United States, except in the course of legal proceedings to which
the United States is a party (including grand jury proceedings), or for the purpose of securing
compliance with this Final Judgment, or as otherwise required by law.
- If at the time information or documents are furnished to plaintiff, the defendant
represents and identifies in writing the material in any such information or documents to
which a claim of protection may be asserted under Rule 26(c)(7) of the Federal Rules of Civil
Procedure, and the defendant marks each pertinent page of such material, "Subject to claim
of protection under Rule 26(c)(7) of the Federal Rules of Civil Procedure," then 10 days notice
shall be given by plaintiff to the defendant prior to divulging such material in any legal proceeding (other than a grand jury proceeding)
to which that defendant is not a party.
- This Final Judgment shall expire ten years from the date of entry.
- Jurisdiction is retained by this Court for the purpose of enabling any of the
parties to this Final Judgment to apply to this Court at any time for further orders and
directions as may be necessary or appropriate to carry out or construe this Final Judgment, to
modify or terminate any or all of its provisions, to enforce compliance, and to punish
violations of its provisions.
- Each party shall bear their respective costs and attorneys fees.
- Entry of this Final Judgment is in the public interest.
DATED: November 5, 1998
UNITED STATES DISTRICT JUDGE