In two separate cases, federal courts in New York and Georgia rejected efforts by the Securities and Exchange Commission to stop respondents subject to enforcement actions before administrative law judges from challenging the validity of such forum choice. The case in Georgia involved Gray Financial Group, Inc. There the plaintiff sought to enjoin the SEC from proceeding with an enforcement case against it in an administrative law tribunal. The case in New York involved Barbara Duka. There the SEC moved to dismiss a complaint filed by Ms. Duka that likewise sought to stop the SEC from proceeding in an enforcement action against her in an administrative forum. In both cases, the plaintiffs argued that the appointment of the relevant administrative law judge violated the Appointments Clause of the US Constitution. This is because, claimed plaintiffs, ALJs are so-called “inferior officers” under the US Constitution (as they exercise “significant authority pursuant to the laws of the United States”) and Congress can vest the authority to appoint such officers only in the “President alone, in the Courts of Law, or in the Heads of Departments.” Since SEC commissioners themselves did not appoint the relevant ALJs, the Appointments Clause was violated, claimed the plaintiffs. In both cases, the courts ruled that, since it was likely that the plaintiffs would ultimately prevail with their arguments, by not halting their administrative proceedings, they would be irreparably harmed. The NY court declined to decide plaintiff’s application for a preliminary judgment for seven days, however, because “it appears the [SEC] is reviewing its options regarding potential ‘cures’ of any Appointments Clause violations.” In a third case involving Timbervest, LLC and certain related persons, the same judge that decided the Gray Financial Group matter, ruled against the plaintiffs in their motion that involved many of the same arguments in both the Gray Financial Group and Ms. Duka actions. Although the judge agreed with Timbervest’s essential legal argument – that the SEC’s appointment of the ALJ hearing the case was likely unconstitutional – she refused to enjoin the SEC from not publicly disseminating or publishing an opinion adverse to the plaintiffs. This was because an initial opinion already has been published by the relevant ALJ and been widely available since 2014. As a result, even if the order requested by plaintiffs was granted, the damage they seek to avert has already occurred.