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Readers of this blog that are of a certain vintage will no doubt recall the standout network television action-comedy series “The A-Team,” which features a ragtag group of heroes who manage to get involved in all sorts of shenanigans. As I was writing blog entries this week, Col. John “Hannibal” Smith’s recurring tagline came to mind: “I love it when a plan comes together.” The tagline was particularly amusing because it was always uttered when there was no plan whatsoever and everything appeared to be going awry for the A-Team.

Hannibal’s tagline came to mind this week because I did not set out to write multiple blog entries about current reporting of material cybersecurity incidents pursuant to Item 1.05 of Form 8-K, but somehow that turned out to be the recurring theme for the week (besides my take on our upcoming conferences)!

Today I wanted to note that smaller reporting companies became subject to the Item 1.05 reporting requirements effective on June 15, 2024. While all domestic operating companies that did not qualify as smaller reporting companies (including large accelerated filers, accelerated filers and non-accelerated filers) and foreign private issuers that did not qualify as an smaller reporting companies were required to comply with the Item 1.05 reporting requirements back in December 2023, smaller reporting companies were given an additional six months to get ready for the disclosure requirements.

For all of the smaller reporting companies out there, note that Item 1.05 of Form 8-K requires companies to: (i) disclose any cybersecurity incident they determine to be material; (ii) describe the material aspects of the nature, scope, and timing of the incident; and (iii) disclose the material impact or reasonably likely material impact of the incident on the company, including the company’s financial condition and results of operations. Companies must determine the materiality of an incident without unreasonable delay following discovery. If the company determines that the incident is material, it must file an Item 1.05 Form 8-K report within four business days of that determination. Companies are also required to file an amendment to its Form 8-K filing where certain required information was not available at the time of the initial filing. Amendments must be filed within four business days (i) of determining such information or (ii) after such information becomes available.

I am pretty sure all of The A-Team fans out there saw this next line coming: In the immortal words of Mr. T, who played Sergeant Bosco “B. A.” Baracus on The A-Team, I pity the fool that fails to file an Item 1.05 Form 8-K on time.

– Dave Lynn