SEC Provides Temporary Relief from Form ID Notarization Requirements

Wilson Sonsini Goodrich & Rosati

Wilson Sonsini Goodrich & Rosati

On March 26, the U.S. Securities and Exchange Commission (SEC) announced that it adopted a temporary final rule that provides relief from Form ID notarization requirements. A Form ID is an application for access to the SEC's EDGAR filing system. Any individual (including, for example, executive officers or directors of public companies) or company that is new to filing with the SEC must complete and submit a signed and notarized Form ID to the SEC in order to gain access to the SEC's EDGAR filing system.

While some states permit virtual notarization or have passed emergency measures1 to permit virtual notarization during this pandemic, and a bipartisan bill2 has been introduced in the U.S. Senate to permit virtual notarizations nationwide, as of the date of this Alert, there are still some states for which virtual notarization is not permitted. Thus, it has become increasingly difficult for some individuals and companies to obtain the required notarization for their Form IDs. As a result, the SEC is providing temporary relief from the Form ID notarization requirement "where circumstances related to COVID-19 render it impracticable or impossible to obtain a notarization in a timely fashion."

Specifically, from March 26 through July 1, 2020, the SEC staff will be allowed "to create EDGAR accounts and issue EDGAR access codes based on a manually signed document without the requisite notarization, provided that the filer indicates on the face of the signed document that it could not obtain the required notarization due to circumstances relating to COVID-19." (Emphasis added.) Once those access codes are issued, the filer may commence filing on EDGAR. Notwithstanding the foregoing, the final rule requires that the filer "submit as correspondence via EDGAR a PDF copy of the notarized manually signed document within 90 days of the issuance of the codes under this temporary provision." (Emphasis added.) If not so provided, then the SEC could deactivate the EDGAR access codes.

The SEC also noted that filers relying on this temporary rule "may be asked to provide documents, on a supplemental basis, to support their application to assist the staff in validating the request." In addition, the SEC also noted that it had authorized its staff to deactivate access codes if they have "reason to believe that a filer who gained access under the temporary rule has made illegitimate filings that are inconsistent with the protection of investors."

[1] See, e.g., NY Exec. Order No. 202.7, Continuing Temporary Suspension and Modification of Laws Relating to the Disaster Emergency (Mar. 7, 2020);

[2] Securing and Enabling Commerce Using Remote and Electronic Notarization Act of 2020, S. 3533, 116th Cong. (2019-2020).

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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