EDGAR Down Just 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?

Thanks to Joanne Wendler for suggesting the topic of today's blog entry.

Best-Laid Plans of EDGAR Filers

EDGAR outages unfortunately happen. Lately, perhaps, more than usual. According to EDGAR, the system was experiencing technical difficulties on July 2, TheCorporateCounsel.net reportsit was down again on July 30, and Joanne tells me it was down again last Friday. The EDGAR News & Announcements page will sometimes have information about EDGAR outages.

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.

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 to the day before, 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).

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).

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 much 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—see my blog entry “Getting EDGAR Codes in a Hurry”). But if you think your situation warrants an adjustment, it’s worth a try.

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.

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.