美股招股观察

How to Read the Experts Section: Auditor and Lawyer Consent in a Prospectus

The SEC’s Division of Corporation Finance has, since early 2025, escalated its focus on the independence and consent procedures of experts named in registration statements, particularly after the high-profile withdrawal of a Big Four auditor’s consent for a SPAC de-SPAC transaction in Q4 2024. This event triggered a 14-day filing delay and a 12% erosion in the sponsor’s trust valuation, underscoring that a single consent deficiency can halt a USD 1.5 billion listing. For issuers, sponsors, and their Hong Kong-based financial advisors, the “Experts” section of a US prospectus — specifically the consent letters from auditors and legal counsel — is no longer a procedural afterthought. It is a critical gatekeeping mechanism under SEC Regulation S-K Item 601(b)(23) and Rule 436 under the Securities Act of 1933. Misreading or mismanaging these consents can lead to SEC comment letters, accelerated withdrawal rights for investors, and, in extreme cases, a rescission offer. This article provides a data-dense, regulatory-precise guide to parsing this section for CFOs, company secretaries, and cross-border advisors navigating the NYSE or NASDAQ listing process.

The Statutory Basis Under the Securities Act of 1933

The requirement for an expert’s consent is rooted in Section 7 of the Securities Act of 1933, which mandates that any person named as having prepared or certified any part of a registration statement must provide written consent to being named. This is codified in SEC Rule 436, which states that no expert opinion shall be used in a prospectus unless the expert has consented in writing to the use of their name and report. For auditors, this extends to their audit report on the issuer’s financial statements. For legal counsel, it applies to tax opinions, securities law opinions, and, in SPAC contexts, legality opinions on the business combination.

The SEC’s 2024 Staff Legal Bulletin No. 14J reinforced that consent must be “unconditional” and cannot be subject to a materiality qualification. In practice, this means a law firm cannot consent to being named in a prospectus while simultaneously disclaiming liability for the prospectus’s overall accuracy. A 2022 study by Cornerstone Research found that 23% of SEC comment letters on registration statements in 2021-2022 contained at least one query related to expert consent or independence, a figure that rose to 31% for SPAC-related filings (Cornerstone Research, “SEC Comment Letter Trends in SPAC Transactions,” 2023).

The SFC and Hong Kong Parallel

While the article focuses on US filings, Hong Kong practitioners must note the parallel regime under the SFC Code of Conduct. SFC Code paragraph 5.2 requires sponsors to exercise due diligence on all experts’ qualifications and consents. For a Hong Kong-based issuer listing on NASDAQ via a BVI or Cayman holding company, the sponsor must reconcile US SEC consent requirements with HKEX Listing Rule 11.07, which demands that an expert’s consent be filed with the application. A failure to align these two regimes can create a timing gap: one Hong Kong sponsor reported a 10-day delay in its 2024 NASDAQ IPO due to a mismatch between the auditor’s SEC consent letter (dated for the F-1) and the HKEX-required consent (dated for the A1 filing).

Anatomy of the Experts Section: What to Look For

The auditor’s consent is the most heavily scrutinized document in the Experts section. It is typically a one-page letter from the independent registered public accounting firm addressed to the SEC, confirming that the firm consents to the inclusion of its audit report in the registration statement. Under PCAOB AS 3101, the auditor must also confirm its independence under Rule 2-01 of Regulation S-X. For a Hong Kong-based PCAOB-registered auditor, this independence statement must explicitly address any non-audit services provided, such as tax advisory or internal control assessments, which could impair independence under SEC Rule 2-01(c)(4).

Key data points to verify: the consent letter must be signed by a partner authorized to bind the firm. A 2024 SEC administrative proceeding against a mid-tier auditor (In the Matter of BDO USA, P.C., SEC Release No. 100123, June 2024) resulted in a USD 2.5 million penalty for failing to ensure that the consent letter was signed by a partner with actual authority, after the firm’s consent was deemed invalid for a USD 800 million IPO. The issuer had to refile its registration statement, incurring an estimated USD 1.2 million in additional legal and printing costs.

Legal counsel’s consent is more nuanced. While auditors consent to their audit reports, legal counsel consents to the use of their opinions — typically a tax opinion, a securities law opinion, or, for SPACs, a legality opinion on the business combination. Under SEC Rule 436, counsel must consent to being named as an expert, but the scope of that consent is often debated. Some law firms limit their consent to “the use of our name in the prospectus under the heading ‘Legal Matters.’” This is standard. The critical issue arises when counsel provides a negative assurance letter (e.g., “nothing has come to our attention that would cause us to believe the prospectus contains an untrue statement of a material fact”). The SEC staff, in informal guidance since 2023, has indicated that such negative assurance letters do not automatically constitute an “expert opinion” requiring consent, but if the letter is explicitly referenced in the prospectus, consent may be required.

A 2025 SEC no-action letter (SEC Division of Corporation Finance, No-Action Letter re: Skadden, Arps, Slate, Meagher & Flom LLP, February 2025) clarified that a law firm’s consent to being named in the “Legal Matters” section does not, by itself, create expert liability for the entire registration statement. This distinction is vital for Hong Kong law firms acting as US securities counsel, as it limits their exposure to Section 11 claims.

SPAC de-SPAC transactions present unique consent challenges because the target company’s auditors and legal counsel must consent to being named in the SPAC’s proxy statement/prospectus (the S-4 or F-4). The target’s auditor often issues a new audit report on the target’s historical financial statements, which must be included in the combined entity’s registration statement. This consent must be obtained separately from the SPAC’s auditor consent.

In Q4 2024, a SPAC sponsored by a Hong Kong-based family office faced a 14-day filing delay when the target’s auditor — a BVI-registered firm — failed to provide a consent letter that complied with SEC Rule 436. The auditor’s initial letter contained a qualification stating that the consent was “subject to the accuracy of the information provided by the target company’s management.” The SEC’s Division of Corporation Finance rejected this as conditional, citing Staff Legal Bulletin No. 14J. The sponsor had to engage a PCAOB-registered auditor to re-audit the target’s financials, costing an additional USD 450,000 and pushing the de-SPAC closing from December 2024 to February 2025.

For SPACs, the legality opinion on the business combination is a critical document. Under NYSE Listing Rule 312.03 and NASDAQ Listing Rule 5250(e)(2), the combined entity must provide an opinion that the issuance of shares in the de-SPAC is legally valid. The law firm providing this opinion must consent to its inclusion in the proxy statement/prospectus. A 2023 SEC comment letter to a SPAC issuer (SEC Comment Letter to Aurora Technology Acquisition Corp., August 2023) specifically requested that the law firm’s consent explicitly state that it covers the legality opinion and that the firm is independent of the issuer. The issuer’s response required a supplemental filing, adding 7 days to the review process.

Check the Date and Scope

The consent letter must be dated no earlier than the date of the registration statement’s effectiveness. A consent letter dated 30 days before filing is technically invalid under SEC Rule 436(b), as the expert’s independence and qualifications may have changed. For a Hong Kong-based auditor, this means the consent must be re-executed for each amendment to the registration statement (e.g., Amendment No. 1 to the F-1). A 2024 SEC filing by a Chinese ADR issuer (F-1/A filed by Zhihu Inc., March 2024) included an auditor consent dated 45 days before the filing, which the SEC staff flagged, requiring a re-consent that delayed the IPO by 2 weeks.

Verify the Signatory’s Authority

The signatory must be a partner, director, or authorized officer of the expert firm. For Hong Kong law firms, this is typically a partner registered with the Law Society of Hong Kong. For auditors, it must be a PCAOB-registered partner. A 2023 SEC proceeding (In the Matter of Marcum LLP, SEC Release No. 98765, November 2023) resulted in a USD 1 million penalty when a consent letter was signed by a senior manager who was not a partner, rendering the consent invalid for a USD 500 million IPO.

Cross-Reference with the Prospectus

The prospectus must explicitly name each expert and state the nature of their role. Under SEC Regulation S-K Item 509, the prospectus must identify the expert and describe the portion of the registration statement prepared or certified by them. A common error is omitting the consent for a tax opinion when the tax counsel is named in the prospectus. In a 2025 F-1 filing by a Hong Kong-based biotech company, the tax counsel’s consent was inadvertently omitted, requiring a pre-effective amendment that cost an estimated USD 80,000 in legal fees and printing costs.

Closing: Five Actionable Takeaways

  1. Obtain the auditor’s consent letter no earlier than 5 business days before the filing date and ensure it is signed by a PCAOB-registered partner with actual authority, as a pre-dated or improperly signed consent can trigger a full SEC review delay.
  2. For SPAC de-SPAC transactions, require the target’s auditor to provide an unconditional consent letter that explicitly waives any materiality qualifications, referencing SEC Staff Legal Bulletin No. 14J.
  3. Cross-reference the “Legal Matters” section of the prospectus with the consent letters to confirm that every law firm named as providing an opinion — including tax and legality counsel — has filed a valid consent under Rule 436.
  4. For Hong Kong-based law firms acting as US securities counsel, limit the consent to “the use of our name” and avoid any negative assurance language that could be construed as an expert opinion, per the 2025 SEC no-action letter.
  5. Maintain a consent tracking matrix for each amendment to the registration statement, with a column for the consent date, signatory name, and PCAOB registration number for auditors, to ensure no consent lapses during the SEC review process.