Since writing our original article — “Co-op challenges are coming — Will they work?” — to the best of our knowledge, no challenges have come. However, in that time, arguments in defense of cooperation agreements have been brought to our attention and merit discussion.

There is little precedent related to this topic, and sparse commentary. One has to look back to 2012 to find a substantive public article by antitrust lawyer Ali Stoeppelwerth that takes a stab at cataloging applicable defenses.

The most compelling of said defenses, per Stoeppelwerth, were (1) lack of antitrust injury and (2) the Noerr-Pennington doctrine. These defenses, which will be discussed below, delve into case law where creditors organized, and in response to that organization, companies sued and lost.

Like the American Needle case discussed in the prior article — we do not feel that any of the precedent we’re examining is exactly on point, but they are helpful in thinking about how a court may address future litigation.