17 C.F.R. § 230.436

Consents required in special cases

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Link to an amendment published at 89 FR 21919, Mar. 28, 2024.This amendment was delayed indefinitely at 89 FR 25804, Apr. 12, 2024.

(a) If any portion of the report or opinion of an expert or counsel is quoted or summarized as such in the registration statement or in a prospectus, the written consent of the expert or counsel shall be filed as an exhibit to the registration statement and shall expressly state that the expert or counsel consents to such quotation or summarization.

(b) If it is stated that any information contained in the registration statement has been reviewed or passed upon by any persons and that such information is set forth in the registration statement upon the authority of or in reliance upon such persons as experts, the written consents of such persons shall be filed as exhibits to the registration statement.

(c) Notwithstanding the provisions of paragraph (b) of this section, a report on unaudited interim financial information (as defined in paragraph (d) of this section) by an independent accountant who has conducted a review of such interim financial information shall not be considered a part of a registration statement prepared or certified by an accountant or a report prepared or certified by an accountant within the meaning of sections 7 and 11 of the Act.

(d) The term report on unaudited interim financial information shall mean a report which consists of the following:

(1) A statement that the review of interim financial information was made in accordance with established professional standards for such reviews;

(2) An identification of the interim financial information reviewed;

(3) A description of the procedures for a review of interim financial information;

(4) A statement that a review of interim financial information is substantially less in scope than an audit conducted in accordance with the standards of the Public Company Accounting Oversight Board (United States) (“PCAOB”), the objective of which is an expression of an opinion regarding the financial statements taken as a whole, and, accordingly, no such opinion is expressed; and

(5) A statement about whether the accountant is aware of any material modifications that should be made to the accompanying financial information so that it conforms with generally accepted accounting principles.

(e) Where a counsel is named as having acted for the underwriters or selling security holders, no consent will be required by reason of his being named as having acted in such capacity.

(f) Where the opinion of one counsel relies upon the opinion of another counsel, the consent of the counsel whose prepared opinion is relied upon need not be furnished.

(g)(1) Notwithstanding the provisions of paragraphs (a) and (b) of this section, the security rating assigned to a class of debt securities, a class of convertible debt securities, or a class of preferred stock by a nationally recognized statistical rating organization, or with respect to registration statements on Form F-9 (§ 239.39 of this chapter) by any other rating organization specified in the Instruction to paragraph (a)(2) of General Instruction I of Form F-9, shall not be considered a part of the registration statement prepared or certified by a person within the meaning of sections 7 and 11 of the Act.

(2) For the purpose of paragraph (g)(1) of this section, the term nationally recognized statistical rating organization shall have the same meaning as used in Rule 15c3-1(c)(2)(vi)(F) (17 CFR 240.15c3-1 (c)(2)(vi)(F)).

(h) Notwithstanding the provisions of paragraphs (a) and (b) of this section, any description about matters identified by a qualified person pursuant to § 229.1302(f) of this chapter shall not be considered a part of the registration statement prepared or certified by the qualified person within the meaning of Sections 7 and 11 of the Securities Act.

[47 FR 11441, Mar. 16, 1982, as amended at 58 FR 62030, Nov. 23, 1993; 76 FR 71876, Nov. 21, 2011; 83 FR 50212, Oct. 4, 2018; 83 FR 66461, Dec. 26, 2018]

Notes of Decisions

Cited in 10 cases, 2004–2014 · leading case: Genesee County Employees' Retirement System v. Thornburg Mortgage Securities Trust

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Genesee County Employees' Retirement System v. Thornburg Mortgage Securities Trust (2011) nmd · cites it 12× “First, based on an SEC regulation, 17 C.F.R. § 230.436 (g)(1), 32 they argue that credit ratings are not part of a registration statement under federal law.”

In Re WorldCom, Inc. Securities Litigation (2004) nysd · cites it 3× “17 C.F.R. § 230.436 (a), (b). Yet written consent is not sufficient to convert an opinion or review into an exper-tised statement.”

In Re Lehman Bros. Securities and Erisa Litigation (2011) nysd · cites it 2× “436 (c), a "report on unaudited interim financial information” is a report which consists of: "(1) A statement that the review of interim financial information was made in accordance with established professional standards for such reviews; (2) An identification of the interim…”

In Re Lehman Bros. Mortgage-Backed Securities (2011) ca2 “" 17 C.F.R. § 230.436 (g)(1). The express purpose of the Rule was to "exclude any [rating agency] whose security rating is disclosed in a registration statement from civil liability under Section 11.”

In re Bear Stearns Mortgage Pass-Through Certificates Litigation (2012) nysd “See SEC Rule 436(g)(1), 17 C.F.R. § 230.436 (g)(1) ("the security rating assigned .”

Public Employees' Retirement System v. Merrill Lynch & Co. (2010) nysd “” 17 C.F.R. § 230.436 (g)(1). As the SEC has stated, the rule was intended to “exclude any nationally recognized statistical rating organization whose security rating is disclosed in a registration statement from civil liability under *482 Section 11.”

In Re Enron Corp. Securities, Derivative (2005) txsd “Rule 436(g)(1) of the Securities Act of 1933, 17 C.F.R. § 230.436 (g)(1) provides for exemption of liability for them: "[T]he security rating assigned to a class of debt securities, a class of convertible debt securities, or a class of preferred stock by a nationally recognized…”

Federal Housing Finance Agency v. Nomura Holding America Inc. (2014) nysd “at § 77k(a)(4); 17 C.F.R. § 230.436 (a), (b); In re WorldCom, Inc.”

Madden v. Deloitte & Touche, LLP (2004) ca9 “§ 77k(a); 17 C.F.R. § 230.436 (c); Monroe v. Hughes, 31 F.”

Wyoming State Treasurer v. Moody's Investors Service, Inc. (2011) ca2 “” 17 C.F.R. § 230.436 (g)(1). The express purpose of the Rule was to "exclude any [rating agency] whose security rating is disclosed in a registration statement from civil liability under Section 11.”

— 17 C.F.R. § 230.436(b) — 1 case

Genesee County Employees' Retirement System v. Thornburg Mortgage Securities Trust (2011) nmd “First, based on an SEC regulation, 17 C.F.R. § 230.436 (g)(1), 32 they argue that credit ratings are not part of a registration statement under federal law.”

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