Section 260.504.2.2 - Written Consent of Expert(a) When Consent Required. Except as provided in Subsection (b), no person shall use any prospectus or offering circular in connection with an offer or sale of securities which is required to be qualified pursuant to Part 2 (commencing with Section 25100) of Division 1 of Title 4 of the Code which contains any expertized material or with which any expertized material is distributed or in which any expertized material is referred to unless the expert is named in the prospectus or offering circular and a written consent has been filed in accordance with subsection (d).(b) Written Consent Not Required. Subsection (a) shall not apply in any of the following instances: (1) The application seeks authority to offer or sell securities only to named persons, unless the Commissioner by order otherwise requires in the particular circumstances.(2) In connection with other types of offerings, the Commissioner does not require the filing of a written consent of the expert upon a request of the applicant because of undue hardship or other sufficient cause.(c) Guidelines. The following guidelines apply with respect to the provisions of Subsection (a): (1) Expert's Reliance on Expert. When an expert named in connection with expertized material expressly relies on another expert, such other expert must also be named and the written consent of such other expert filed, in accordance with Subsection (a).(2) Attorneys. (A) When a prospectus or offering circular contains an opinion of counsel as to the legality of the issue, the written consent of the attorney furnishing the opinion must be filed. If any other attorney is also named as having prepared an opinion as to the legality of the issue, the written consent of such other attorney must also be filed, even though the opinion of such attorney is not included in the prospectus or offering circular.(B) If any information contained in the prospectus, other than that referred to above, is stated to be furnished upon the authority of an attorney, such attorney shall be named in the prospectus or offering circular and such attorney's written consent to being so named shall be filed. Where the same attorney is named with respect to several parts of the prospectus, it is not necessary to file a separate written consent with respect to each such part but the consent filed must be broad enough to cover all matters with respect to which the attorney is named as having acted.(C) When an attorney is named in a prospectus or offering circular as having acted for the underwriters or selling security holders, no consent will be required by reason of such attorney being named as having acted in such capacity.(D) When the opinion of one attorney relies upon the opinion of another attorney, the written consent of the attorney who prepared the initial opinion must be filed if such attorney is named in the prospectus or offering circular.(E) When information, such as the nature of title to properties, is stated in a prospectus or offering circular to be based on an opinion of counsel, the name of the attorney must be disclosed in the prospectus or offering circular and such attorney's written consent must also be filed. The name of such attorney need not be set forth at the particular place where the information based on his or her opinion is given, provided such attorney is otherwise identified and named elsewhere in the prospectus or offering circular.(d) Formal Requirements for Written Consent. (1) Except as provided in Subsection (4), each written consent filed with the Commissioner pursuant to Subsection (a) shall be dated and manually signed, shall identify the prospectus or offering circular to which it relates, and shall consent to the inclusion in or reference to specific expertized material in the prospectus or offering circular and to the inclusion of the name of the expert in the prospectus or offering circular.(2) If the prospectus or offering circular is amended after such written consent is obtained in any manner affecting the use of the expert's name or the expertized material, the further written consent of such expert is required in accordance with the foregoing.(3) The written consent must be filed as an exhibit to the application for qualification (see instructions in the application forms for qualification set forth in Rules 260.112, 260.113 and 260.121.1), and such written consent may be included in the expertized material or any other document required to be filed as an exhibit with the Commissioner.(4) SEC Filings. A written consent of an expert filed with the Securities and Exchange Commission in connection with an offering registered under the Securities Act of 1933, the qualification of which is required pursuant to Part 2 (commencing with Section 25100) of Division 1 of Title 4 of the Code, shall constitute a filing with the Commissioner pursuant to Subsection (a) and shall be effective in lieu of the other requirements of this subsection if: (A) Such consent does not expressly provide that it shall not constitute the consent of the expert for any other purpose, and(B) The applicant has incorporated generally by reference in the application all written consents filed with the Securities and Exchange Commission.(e) No Implied Written Consent. Neither the filing of expertized material as an exhibit to an application or as supplemental information in connection with qualification proceedings, nor the use of or reference to expertized material in a prospectus or offering circular or any written report or valuation distributed with a prospectus or offering circular, whether pursuant to an exemption under, or by order of the Commissioner under, Subsection (b) or otherwise, nor any waiver by the Commissioner of a written consent which would otherwise be required, shall be deemed to take the place of, or to imply, the written consent of the expert required by Section 25504.2 of the Code as a condition of liability.Cal. Code Regs. Tit. 10, § 260.504.2.2
Note: Authority cited: Section 25610, Corporations Code. Reference: Sections 25111(d), 25112(d), 25113(d), 25121(d), 25140(a)(b)(c)(d), 25300(a)(b)(c)(d), and 25504.2(e), Corporations Code.