EDGAR Down When You Need It? Request a Filing Date Adjustment

The Form 4 you’ve been working on for the past two days has finally been approved, signed, and is ready for filing. You’ve got half an hour left to file and the form is ready to go—plenty of time. You are just about to submit the filing and… OOHHH NOOOO! EDGAR is down! It’s 5:00 PM on the east coast—what are the chances some underpaid and overworked government IT staffer is going to get the system up in time? What can you do?

Best-Laid Plans of EDGAR Filers

EDGAR outages unfortunately happen. And EDGAR outages are just one worry when time is of the essence for Section 16 filings. Your power or internet could go out just as you are trying to submit a filing, the filing could be rejected due to an error that you can’t figure out, or a technical glitch with the filing or with EDGAR could prevent you from submitting the filing.

Recently, in the aftermath of the launch of the EDGAR Next platform, I've learned that the EDGAR platform has been experiencing some issues that may have prevented filing submissions. Some companies have been experiencing difficulties submitting Form ID for new filers. In some cases, Form ID could not be submitted due to known issues in the EDGAR platform that the SEC was (and possibly still is) working to resolve.

And, for about a week after the launch, it was not possible to update the point of contact email address on a filer's account. This can be a problem if you need to reset a filer's CCC or passphrase (both actions require a valid email address that the reset token can be sent to).

A valid CIK and CCC is necessary to submit filings for an insider, so the inability to submit Form ID or update a CCC could cause a delinquent filing.

Filing Date Adjustments to the Rescue

Let’s assume that in my scenario above, EDGAR doesn’t come back online until the next day and you have no choice but to submit the Form 4 filing late. Having to report a delinquent filing because EDGAR was down hardly seems fair. Luckily, the SEC has a remedy. This is the perfect situation in which to request a filing date adjustment. If granted, the SEC will change the date of your filing, magically turning it into a timely filing. Voila—the delinquency vanishes.

When Will the SEC Grant a Filing Date Adjustment?

Filing date adjustments are rare. The most common situations in which the SEC staff is willing to grant filing date adjustments are those that involve technical problems that prevent the filing from being submitted on time. EDGAR being down unexpectedly is a good example. In fact, when EDGAR is down, sometimes the staff will automatically grant filing date adjustments (although often you must request the adjustment).

Even if the EDGAR system is up and running, technical issues on the platform are another example of a scenario in which a late filing may not be within your control and thus, the SEC might be willing to grant a filing date adjustment.

Power and internet outages are other situations for which the SEC staff is often willing to grant a filing date adjustment. Occasionally the staff will grant a filing date adjustment for a late filing resulting from human error, such as misunderstanding an error message sent back by the EDGAR system (although, in this situation, it would probably be helpful for you to have at least tried to contact EDGAR Filer Support for help with the error message).

My understanding is that the staff has a fair amount of discretion in determining whether to grant a filing date adjustment. In general, adjustments are granted only if it can be demonstrated that a good faith effort was made to submit the filing on time and the report could not be timely filed due to technical difficulties beyond the filer’s control.

What About Inclement Weather?

Since EDGAR is electronic, in most cases the SEC staff won’t grant filing date adjustments just because the weather is bad. If the inclement weather caused your power or internet to go out or caused an EDGAR outage, chances of an adjustment are better. If you can demonstrate that the inclement weather prevented you from submitting the filing for some other reason (e.g., you were stranded somewhere without a computer and no one else could submit the filing), it’s worth a try.

What About If We Don’t Get an Insider’s EDGAR Codes in Time?

Unfortunately, the SEC staff has been largely unsympathetic to filing date adjustment requests in this circumstance (despite the fact that it has created a system in which it is difficult, sometimes impossible, to get the codes in time for the insider’s first Form 4 filing. But if you think your situation warrants an adjustment, it’s worth a try.

If you are unable to submit Form ID due to a technical issue with the EDGAR platform and this results in a late filing, the SEC might be more willing to issue a filing date adjustment. I say "might" because the SEC could take the position that you should have allowed more time to submit the Form ID. If the Form ID was submitted just days before the filing was due, the SEC may be less sympathetic.

There are always bound to be things that go wrong when implementing a new platform, such as EDGAR Next. While the SEC is resolving these issues, I recommend the following practices:

• Allow more time than usual for Form ID submissions. I realize this might not always be possible, but if you can get out ahead of your Form ID filings, do so. 
• Don't just assume that the problem is EDGAR; at least try to resolve it on your own. Here is a list of common EDGAR error codes and tips from the SEC for converting files to plain text. 
• If you are experiencing a problem with a Form ID filing that you can't resolve, reach out to EDGAR Filer Support for assistance. It might not be your fault or even something you can fix. If the new insider has an impending filing due, don't delay reaching out to Filer Support.
• Keep a record of all attempts to submit Form ID, error messages received and actions taken to try to address them, and any communication with EDGAR Filer Support.
• If the failure is due to a technical issue in the EDGAR platform, resubmit the form as soon as you can once you are notified that the issue is resolved.

How Do You Request a Filing Date Adjustment?

The request must be submitted as an EDGAR CORRESP submission and must be submitted by the insider, not a filing agent or other third party.  It should be addressed to the Chief, Office of Information Technology, Division of Corporation Finance, submitted using the insider’s CIK, and signed by the insider or the insider’s legal representative. The request should include the following information:

• The name and CIK of the filer.
• The name and CIK of the issuer.
• The accession number of the filing.
• The EDGAR submission type of the filing.
• A description of the technical difficulties leading to the late filing, including the date and time of the initial attempted transmission.
• A statement of how the insider will be harmed if the staff does not grant the request.
• An affirmative request, pursuant to Rule 13(b) of Regulation S-T, for adjustment of the filing date from the actual filing date to the date of the initial attempted transmission.
• Any emails sent by EDGAR for test filings and all filing attempts, including acceptance/suspense messages.

You should confirm receipt of the request by sending an email to EDGARFilingCorrections@sec.gov that includes the accession number of the request (i.e., the filing date adjustment request, not the accession number of the filing in question) and the name, phone number, and email address of the person the SEC should contact regarding the request.

If you would like to discuss your request with EDGAR staff before submitting it (e.g., to try to get a feel for how receptive they might be to the request), you can email EDGARFilingCorrections@sec.gov to request a call back. Include the accession number of the filing for which you are requesting an adjustment in the email, an explanation of why the filing was late, and your contact information.

Finally, the adage “you catch more flies with honey than with vinegar” is certainly true when making requests of the SEC staff. Be polite and respectful in the request. Despite the level of frustration you may be feeling, don’t swear or call the EDGAR system names.

The SEC usually processes filing date adjustment requests within five to seven days. See "Request a Filing Date Adjustment" on the SEC's website for more information. 

More Info on EDGAR Next

To learn more about EDGAR Next, check out the NASPP webinar "How to Prepare for EDGAR Next" and my blog "SEC Announces Big Changes to EDGAR Access."

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P.S. Wondering why EDGAR is such a hot mess? The episode "DMV Nation" from the Reply All podcast explains the problem with government websites.

P.S.S. I love the image for this blog entry because not only is the expression on her face pretty much exactly how I feel when dealing with EDGAR but also that looks like a bunch of DOS code on her screen, which feels like about how archaic EDGAR is. Who designs a website that shuts down at 7:00 PM Pacific every night? Someone still coding in DOS, that's who.