A couple of days ago, the SEC amended Reg S-T to extend the filing deadline for Form 144 from 5:30 p.m. to 10:00 p.m. Eastern Time.  You may remember that, in June last year, the SEC adopted amendments to require electronic submission of several forms that could then be submitted on paper, including, for reporting companies, Form 144 (beginning April 13, 2023). (See this PubCo post.) Form 144 was then transformed into an online fillable document, similar to Form 4, designed to facilitate electronic filing and to be machine-readable and available for automated and efficient analysis. Prior to this week’s amendment to Reg S-T, a Form 144 submitted by direct transmission after 5:30 p.m. was deemed filed the next business day. Under the new amendments, effective March 20, a “Form 144 that otherwise complies with applicable filing requirements that is submitted by direct transmission after 5:30 p.m., but no later than 10:00 p.m., will be deemed filed the same business day.”

Update: In a statement about the extension of time issued on March 3, Corp Fin added that, “as of April 13, 2023, the Division’s Statement Regarding Requirements for Form 144 Paper Filings in Light of COVID-19 Concerns (June 25, 2020) will no longer be in effect and Forms 144 will no longer be accepted via email. After that time, Forms 144 that relate to the sale of securities of issuers not subject to the reporting requirements of Section 13 or 15(d) of the Exchange Act must be filed in paper.”

In a statement issued on February 22 regarding the new deadline and the 30th anniversary of the EDGAR system, SEC Commissioner Mark Uyeda expressed his concerns about the SEC’s “piecemeal approach to changing the EDGAR filing deadlines for its forms.” Uyeda viewed the deadline extension as a “sensible change that eases the stress and burden on sellers (and their brokers, counsels, and other professionals), who must file Form 144 on the same day as placing their order to sell stock.” However, he noted that only a limited number filings have the benefit of the extended 10 p.m. deadline: Form 144, Forms 3, 4, and 5, Schedule 14N and Rule 462(b) registration statements. Thirty years ago, in the era of EDGAR’s adoption, he observed, people worked in offices from 9:00 a.m.– 5:30 p.m., Monday to Friday. (Hmmm. Really??)  But now, in the “current era of a 24-hour news cycle and remote work and work-from-anywhere,” the hours set for EDGAR filings may no longer be the most suitable. He advocated that the SEC do a comprehensive review of the EDGAR schedule and request public comment, including consideration of the following questions:

  • “Should EDGAR be able to accept electronic submissions on Saturdays, Sundays, and federal holidays?
  • Is the current 6:00 a.m. to 10:00 p.m. Eastern Time EDGAR submission period appropriate?
  • What other forms, if any, should have their filing deadline extended from 5:30 p.m. to 10:00 p.m. Eastern Time, or another time?
  • Are filers outside of the Eastern Time zone, and particularly foreign filers, disadvantaged by the current submission hours and filing deadlines?”

Posted by Cydney Posner