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How to Request a Filing Date Adjustment for a Late Filing

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While EDGAR remained up and running throughout Hurricane Sandy the rest of us may not have been so lucky. A number of east coast data centers either went down or were taken offline during the storm and millions of homes and businesses lost and many still remain without power.

One of the many compliance issues that arises in a power-related emergency is what happens if you are supposed to submit a Form 8-K, registration statement or some other filing but are unable to do so?

In the case of Hurricane Sandy, the Commission has been posting updates on its website all week and advises filing when you can and that CorpFin will consider filing date adjustments on a case-by-case basis.

Leading to the question: how do you request a filing date adjustment?

If this isn’t your first filing you probably already know that the official filing date for any EDGAR filing is the business day on which the Commission receives it, with 5:30 pm eastern time being the cutoff for Securities Act filings and most Exchange Act filings (with the exception of Section 16 filings on Forms 3, 4 and 5 and Schedule 14N filings (related to shareholder director nominees), which have a cutoff time of 10:00 pm eastern time).

As for adjusting a filing date, Rule 13(b) of Regulation S-T provides that the Commission may, upon request, adjust a filing date if a filer in good faith attempts to file a document in a timely manner but the filing is delayed due to technical difficulties beyond the filer’s control.

The Commission has previously issued guidance on how to request a filing date adjustment for both issuers and investment companies, and has made similar filing date adjustments following a 2003 power outage in the northeast.

To apply for a filing date adjustment you must submit a written request, through the EDGAR system, via EDGAR CORRESP, to the Chief, Office of Information Technology, Division of Corporation Finance (or if you are an investment management company, to the Senior Special Counsel (EDGAR), Division of Investment Management), and include the following information:

  • the filer name and CIK;
  • the accession number and EDGAR submission type of the filing;
  • a concise but detailed description of the technical difficulty leading to the late filing, including the date and time of the initial attempted transmission;
  • a statement of how the filer will be harmed if a filing date adjustment is not granted (e.g., financial statements would be stale);
  • an affirmative request pursuant to Rule 13(b) of Regulation S-T for adjustment of the filing date from the specific filing date to the date of the initial attempted transmission; and
  • any e-mails sent by the EDGAR system.

Update November 5,  2012:

The Commission announced today that it is preparing relief measures for those affected by Hurricane Sandy and it aftermath.

The measures are expected to include an extension of the filing deadline for those filings due between October 29, 2012 and November 20, 2012; the extended filing deadline anticipated to be November 21, 2012.

The extension will apply to publicly traded companies, investment companies and investment advisers, among others.

The Commission will also continue to consider other requests for additional relief on a case-by-case basis.

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