John, that’s a very good point. You may well be right about the timing of Judge Kaplan’s decision. But my point stands—whether he decides the issue now or later in the case, I think that the way the Ecuadorans and Stratus pleaded their affirmative defenses puts them in danger of a judgment declaring that the Ecuadoran judgment is not entitled to recognition. They would not have faced that danger, now or later in the case, had they not pleaded res judicata.

Also, I am not sure the policy of the Second Circuit’s decision suggests that the court would be likely to reverse Kaplan’s decision (assuming that he finds the judgment not entitled to recognition). The gist of the Second Circuit’s decision was that a judgment debtor can’t preemptively seek a declaration of unenforceability. Is that what’s going on here? I don’t think so, unless you credit the Lago Agrio Plaintiffs’ assertion that when they pleaded res judicata, they didn’t have the Ecuadoran judgment in mind.